ABSTRACT
Constitutional courts played a key role in transforming the legal systems of Central and Eastern European countries in the post-communist period, facilitating the development of the rule of law. The judicial decisions of these courts have contributed substantially to laying the foundations of the rule of law. The history of the Polish Constitutional Tribunal constitutes a remarkable example of a successful introduction of the rule of law from scratch.
In the early 21st century, illiberal constitutionalism, which first emerged in Hungary and then in other countries, carried out a ‘carpet bombing’ of constitutional courts (and, more broadly, of the judiciary). In essence, this meant that the executive power imposed the conditions for issuing judgments by these courts. As a result of these changes, a sham rule of law system emerged in the countries under discussion.
The destruction of an independent constitutional judiciary naturally raises the question how it is possible to ensure the rule of law without a constitutional court, especially the Kelsenian model of this institution. The peculiarity of the word ‘without’ is manifested in the fact that illiberal constitutionalism retained constitutional courts (as dummies) but at the same time deprived them of real significance. The most accessible way of reconstructing constitutional review seems to involve complementing the centralised review model with the dispersed review exercised by common and administrative courts.
