Review Of Constitutionality
The constitutional review is a judicial review to ensure that standards of right internal ( law , regulation ), but also external ( treaty ) respect the Constitution , which is placed atop the hierarchy of norms. There are different types of control:
- by " an action "before the enactment of a law
- by " exceptional means "when someone challenges the constitutionality of a law by which it is assigned.
and different control bodies
- courts: diffuse control / decentralized
- special court: concentrated review
The effects of control are so different:
- Inter partes (relative authority of res judicata, the unconstitutional act is inapplicable)
- Erga omnes (absolute authority of res judicata, the act is unconstitutional canceled)
The idea of monitoring will be taken up and developed by the Federalists U.S., since it will be seen as another means of "checks and balances ( checks and balances ). It will only take effect a few years later, when stopping Marbury v. Madison the Supreme Court of the United States in 1803. However, Montesquieu's separation of powers has also been invoked as an argument against the constitutionality, on behalf of legicentrist and sovereign power of parliament (and there is no such control in Great Britain ).
Since then, many countries (including the Indian , after a protracted conflict between the Supreme Court and the Parliament ) also (re) invented the constitutional review. The classical doctrine ranked among the two models, but changes in controls, responding to the twin objectives of common rights and fundamental freedoms and denial of control politicized, that today these models are useful very reduced.
Summary |
Control of the law, expressing the general will
Problem of legitimacy of judicial review which is named only vis--vis the people's representatives. There are two doctrinal answers:
- The legal theorist Hans Kelsen responds with the theory of "judge-switcher" the judge's role is merely procedural. However, in France, this theory is not applied, since the Constitutional Council recognizes the jurisdiction to control referendum laws.
Control is then included in this definition of democracy: it is not limited to majority rule, but we must also defend the rights and freedoms:
- this avoids the "tyranny of the majority" in parliament;
- This creates a real superiority of the constitution;
- there is respect for the rule of law.
Models and Procedures
We can distinguish different models, depending on the various supervisory bodies, referral patterns, shape control, effects control.
The constitutional review in the U.S.
Diffuse control, referral to the court open, controlled by way of exception, specific check, a posteriori control, authority of res judicata effect on (no annulment of the act and effect inter partes). The Supreme Court of the United States has no monopoly of constitutional review, but its decisions have a strong authority. Its role of constitutional review is the product not of the constitution, but the case Marbury v. Madison in 1803. She was granted the right (which was not foreseen in the constitution ) to assess the federal law against the Constitution. In 1810, she was also awarded the right to assess the compliance of state laws against the Constitution in Fletcher v. Peck. That, she said, an extension of its mission to "declare the law" and to settle disputes. United States, the constitutional review is done by way of exception, that is to say that it is not law but the Supreme Court decides to take up a case that the interests him. When a statute is declared unconstitutional, it is not directly "canceled" but "suspended" in its execution. Thus a posteriori control of the law, since it must have come into force in order to undergo this check.
The distribution of the North American model
This model was then extended to the countries of South America:
- Brazil: amparo appeal, which allows a citizen to invoke the attack against a right guaranteed by the constitution, but whose effects are not erga omnes.
- Colombia also imported this model, but more importantly, is the first country to invent a priori control of a law.
Changing Patterns of control in the North American model
In three cases, the judges of the United States can take decisions erga omnes:
- declaratory judgments;
- facial challenges: direct challenges to the constitutionality of laws (one does not attack an act adversely affecting made thereunder, but the law itself);
- overbreadth: control the excessive legislative power.
The European model
Hans Kelsen founded the High Constitutional Court of Austria in 1920. Louis Favoreu actually a model. Court established to deal specifically and exclusively constitutional litigation and located outside the court system regular and independent of it as public authorities. Control concentrate (one court jurisdiction), limited referral (political authorities, courts and even a self-referral), control by action, abstract review, prior testing, the absolute effect of res judicata (act unconstitutional and annulled erga omnes ).
The characteristics of the European model of constitutional review
1 A central control (not diffuse)
United States, each judge has jurisdiction to review the constitutionality of the law, under the supervision of the Supreme Court. In Europe the courts can rule on the constitutionality of a law: only the constitutional court or tribunal, a body unique and specialize in this type of problem is appropriate to do so. That's why we say that in Europe the constitutional review is centralized, as opposed to the U.S. where it is diffuse. The central court is completely distinct from other jurisdictions. We can not place it on the same footing as other courts or even at the Supreme Court of the United States, which it is placed atop the American judicial system and is asked to rule on appeal on the judgments lower courts and for all questions of law raised by these decisions. The Supreme Court of the United States does not only deals with questions of constitutional law.
Unlike the European Constitutional Courts are specialized in dealing with issues of constitutional law. They are not on top of a set of court. They form a class by themselves a share of specialized courts in questions of constitutionality.
In Europe and the United States may have a control character so real done in a factual situation of implementation of the law. In Germany the constitutionality of a statute can be controlled when the regular judge in fact applied. But the ordinary courts can not decide himself. If the constitutionality of a law before it is invoked by a party to a trial must address the Constitutional Court must decide itself. This is the system of the question: the judge must first decide on a case referred to another court to decide a question of law that does not fall within its jurisdiction. The trial will be suspended until the response of the Constitutional Court. The court will wait until the Constitutional Court has considered the constitutionality of the law at issue before proceeding with the trial.
The constitutional review and judicial review in France
Constitutional Council
The constitutional review was introduced late in French law. While the Senate was a guarantor (inefficient) of the Constitution since the French Revolution, the Constitution of 1958 created a specialized agency, the Constitutional Council. Referral patterns are however limited because the Constitutional Council can not then be seized only by way of action, within one month prior to the enactment of the law, only by: the President of the Republic, the Prime Minister , the president of the National Assembly , the Senate president , according to the provisions of Article 61 of the Constitution of the Fifth Republic.
The Constitutional Council will affirm its role of monitoring until the Freedom of Association Decision of 1971 in which it operates control of constitutionality of the law not only from the text of the Constitution but in relation to a set principles called " constitutional block ".
Subsequently the role of the Constitutional Council is strengthened by the 1974 reform initiated by Valery Giscard d'Estaing that allows the referral by a panel of 60 deputies or 60 senators. The constitutional review will open to the opposition, causing an explosion of referrals, so a better control of the constitutionality of laws. These developments represent a transition from legicentrist to constitutionalism. The Constitutional Council plays an effective role in making laws. The Constitutional Council in its decision on New Caledonia in 1985, said that "the law expresses the general will in respect of the Constitution .
The reform of 23 July 2008 introduced the question as to constitutionality , which now control by way of exception. Entry into force on 1March 2010 , the reform has already led to decisions, including that of July 30, 2010 custody to view. The Constitutional Council declares a non-conforming section of the Code of Criminal Procedure which provides that the lawyer is not involved early in the guard-to-view. The effect of this decision is straightforward .
The judicial review is related to the theory of " law-screen ", in force since the arrest Arrighi (1936) the Council of State : for a law to be applied, take a number of regulations. The judicial review is to assess the compliance of the Act and regulations made thereunder.
Question of constitutionality proritaire
Before 2008, if a law was unconstitutional nonetheless enacted, judges were not competent to assess its conformity with the Constitution. This case is largely undermined by the constitutional law of 23 July 2008. Indeed, the new Article 61-1 of the Constitution provides that "When, during a proceeding pending before a court, it is argued that a legislative provision infringes the rights and freedoms which the Constitution guarantees the Constitutional Council can be seized of this issue on remand the State Council or the Court of Cassation, which decides within a specified period. Organic Law No. 2009-1523 of 10 December 2009 (entered into force on 1 March 2010) has specified the conditions for implementation of the priority issue of constitutionality. It provides a dual filter, that is to say, firstly that the court must determine whether the provision is applicable to the dispute or proceeding or is the basis for prosecution, if not already been declared in conformity with the Constitution (except in case of change of circumstances) and if the issue is not devoid of seriousness. On the other hand, if the transmission is performed at the highest competent court, the latter three months to decide. There is the referral process if the first two conditions are satisfied and if the question is new or has a serious character. At the expiration of three months, although the court did not address the transmission to the Constitutional Council is automatic. If it is satisfied the provision unconstitutional, it is excluded on the pending litigation and repealed (as opposed to the cancellation is retroactive repeal applies only to the future) upon publication of the Constitutional Council's decision except if it decides otherwise by setting a deadline or a date for repeal.
Possible Reviews
The constitutional review gives the judge the role of "co-author" of the law: it would be a kind of "third chamber". This may have led some critics to speak of a " government by judges "that contradicts the national sovereignty embodied by politicians.
Indeed, having the power to declare legislation unconstitutional, the Constitutional Council puts a brake on the legislative business of the legislature as one of the executive. If he were to censor indiscriminately to its jurisprudence, the whole institution would be paralyzed.
For example, this happened with the New Deal under Roosevelt : the judges of the Supreme Court consistently opposed the application of laws passed by Congress.
In France, the eighteenth century , the Parliaments on behalf of the fundamental laws of the Kingdom (which at the time, somehow took the place of incorporation), opposed the implementation of tax reforms initiated by the royal. This behavior is considered a major cause of the blockage and the collapse of the ancien regime. The memory of Parliaments, removed at least partly for this reason during the Revolution , fueled, in France, a lasting distrust towards the very principle of constitutional review by judges.
Loading ...