8. Constitutional Justice

Question 1

Separation of powers

Answer 1

• model of governance for a state

1. Legislative: responsible for enacting the laws of the state and appropriating the money necessary to operate the government.
2. Executive: responsible for implementing and administering the public policy enacted and funded by the legislative branch.
3. Judicial: responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it.

Question 2

Why does a Legal System need a Supreme/Constitutional Court?

Answer 2

1. To ensure certainty and equality
2. To ensure the Rule of Law;
3. To resolve conflicts between central and decentralized government.

Question 3

Types of equality

Answer 3

1. Formal equality: everyone is equal under the law; law is applied to everyone (formed because bourgeoise does the opposite)
2. Substantial equality: recognises that every individual is not equal. e.g. disadvantaged family
   
   • If there are major differences => Democratic state intervenes directly which differs from Liberal state
   • Intervenes by removing obstacles - substantial equality to achieve formal equality
   • Intervention in terms of social right
   • => supreme court = guardian of these principals

Question 4

Rule of law

Answer 4

• Founding principles of Liberal state
• Laws exercised accordingly to specific power given to each body written under Cons.
• E.g. gov cannot exercise legislative power

Question 5

Judiciary system

Answer 5

• Cons = supreme source
• Supreme Court = top of the judiciary system
  
  • judiciary functions
  • constitutional legislative functions
• Judiciary organised in different levels
  
  1. Court of first instance - General Court/ Court of Justice (only called this way mainly in EU)
  2. Court of second instance - Court of Appeal
  3. Court of third instance (last resort) - Supreme Court - checking whether there has been violation of the law => sets limit or else there will continuously be court of appeal
• Generally, what the court of supreme instance does is check if there were any violations in the procedures of the previous courts.

Question 6

Supreme vs. Constitutional Court

Answer 6

both exercise Constitutional Justice and Review functions to protect the supremacy of the Constitution

Supreme:

• a part of the judiciary system where it stands at the top

Constitutional:

• Established outside of the judiciary
• Perform constitutional legislative functions only

Question 7

Definition of Constitutional Justice, Constitutional Adjudication or Constitutional Review

Answer 7

• When a jurisdictional body compares the Constitution (rigid and codified) with subordinate legal sources to the Constitution
• Purpose:
  
  1. Core idea of hierarchy - what is below respects what is above
  2. Cons = supreme source
  3. => essence of Cons. Justice => in case of contrast - declares them unconstitutional.
• Adjudication: the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved. (check of compliance)
• Whether can check both prim and sec. sources dep. on the countries
  
  • Italy: only primary sources are scrutinised
  • Germany: scrutinise also secondary sources (regulations)

Question 8

Judiciary vs. Constitutional Review

Answer 8

• Judiciary: broader; reviews only the law and regulations
• Cons: narrower as it entails the idea of scrutinisation of activities of government by the Court
• => important that they exercise the power independently because they have different functions => to grant the independence, selection procedure = answer
• Note: independence in relation to the other

Question 9

4 main systems to select constitutional judges

Answer 9

1. Appointment based system;
2. Election based system;
3. Mixed system;
4. Predetermined system.

Question 10

Appointment based system

Answer 10

• Judges are nominated (appointed) without any intervention of the legislative body (Parliament).
• e.g. US: “He [the President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court”
• no retirement age, life-term ensures independence of action/decision
• In the selection procedure, president has to take into account several criteria: geographical origin, gender, religion, race => balanced Supreme Court
  
  • does assess based on party/poltical orientation so that the decision does not overshadow the criterion above

Question 11

Election based system

Answer 11

• Parliaments exert greater influence upon the election of constitutional judges in comparison with the election of judges of regular Courts.
• e.g. Germany: “The Federal Constitutional Court shall consist of federal judges and other members. Half the members of the Federal Constitutional Court shall be elected by he Bundestag (lower house) and half by the Bundesrat. (upper house)” => exclusively parliament, half half to prevent/overcome power of majority

Question 12

Mixed system

Answer 12

• Combine elements of appointment based and election based
• Some of the judges are elected by the legislative body (head of body)
• Some of the judges are appointed by non-legislative bodies (head of state)
• May vary across countries (half half, 60-40,…etc.)
• e.g. [Austria; Italy; Spain]
• Carried in joint session: head of state and parliament to elect 5
  
  • established by Cons.
  • To perform electoral functions (work as an electoral college)

Question 13

Predetermined system

Answer 13

• Selection method grants most independence
• No one is involved in the selection procedure
  
  • Neither an appointment
  • Nor an election
  • => legislative does not participate
• Members come from the connection between judiciary office and constitutional court
• Fixed term
• e.g. Greece: “The Court specified in paragraph 1 shall be composed of the President of the Supreme Administrative Court, the President of the Supreme Civil and Criminal Court and the President of the Court of Audit, four Councillors of the Supreme Administrative Court and four members of the Supreme Civil and Criminal. Court chosen by lot for a two-year term”
• Composition based on judiciary

Question 14

Dr Bonham’s Case-1610

Answer 14

• Without rigid and codified Cons.
• Royal College of Physicians imposed sanctions on Dr.Bonham on basis of illegal practice of medicine
• Dr. Bonham went to Court because it was unfair and unreasonable: act of parliament overrides royal college of physician (RCP)
  
  • RCP = board of medicine, but also acts as a judge => no independence of the 2 branches
  • => rules in favour for Dr.: “for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void” = parameter of judgement even though not based on Cons., but based on common law
  • Common law = superior => can review acts of parliament
• => gives birth to:
  
  • The supremacy of the common law in England;
  • The prerogatives of Parliament were derived from and circumscribed by precedent.
  • Parliament supremacy abolished as principle of supremacy is incompatible in relation to the review of the acts of parliament by common law

Question 15

Marbury v. Madison - 1803

Answer 15

1. 15 years after the establishment of the US supreme court, there were no explicit provisions in the US Constitution declaring the Constitution’s supremacy which in turn would lead to review of legislation.
2. In this case, Marbury was appointed as a federal judge. In order to enter into the office, a commission needs to be delivered, otherwise you cannot properly enter into the office.
3. However, due to lack of time, the government was not able to deliver the commission to Marbury.
4. This lack of time was due to the end of president Adam’s term.
5. Thus, Marbury asked the next president, president Jefferson and his secretary of state, Madison, for his commission.
6. Jefferson refused to deliver the commission and Marbury went court.
7. In court, there was a provision in the judiciary act that allowed the court to order the government to deliver his commission.
8. However, the is also a provision in the Constitution which talks about such situations of forcing the executive to deliver commissions.
9. Through their decision of not appointing Marbury, the supreme court basically established the supremacy of the Constitution.
10. Now, any judge may push for the judicial review. When a law is considered unconstitutional after review, it may be eliminated from the legal system.
11. In the US, all courts have the competence to verify whether a law is in pursuance of the Constitution and unconstitutional laws can be eliminated from the legal system.

Question 16

The French contradiction

Answer 16

1. After the French revolution, France did not have a system for review of legislation, as it was still an absolute state.
2. But France gained a different solution to the problem, the principle of the separation of power - the judges only have to interpret and apply legislation.
3. They are not entitled to review or discuss legislation. However, legislation is passed by the representative of the people
4. thus a law is the will of the people, therefore, judges who have not been appointed by the people shall not be allowed to discuss the will of the mass, the legislation.
5. The solution to this dilemma was to let the same party who has passed the legislation, the Upper House of Parliament, review the legislation before it enters into effect.
6. However, this proved to be a very weak form of review and an inadequate means of control.
7. This changed later on and the power of review was shifted to the Constitutional Committee and the Committee was later turned into the Constitutional Council.
8. But this review was still for legislation which had not come into effect and remained so until 2008.

Question 17

Hans Kelsen

Answer 17

1. The peculiarity of flexible Constitutions is that the Constitution may be amended with ordinary legislations.
2. This results in there being no hierarchy between the constitution and legislation.
3. For this, Kelsen describes a particular model where he theorizes the Constitutional Court, which should be entrusted with constitutional reform duties, as the guardian of the constitution, the law of laws.
4. He theorizes the hierarchy of legal sources. According to him, the review also needs to happen after the legislation enters into effect, a posteriori.
5. Constitutional complaints can only be launched by constitutional bodies (federal government, the supreme court of the judiciary…) and if a law is in contrast with the Constitution, the court should strike it down.

Question 18

Essential components of Cons. review

Answer 18

1. Who carries out judicial review?
2. When is review carried out?
3. How can one lodge a constitutional claim?
4. What types of decision?
5. With what effects?

Question 19

Who carries out judicial review?

Answer 19

1. Centralised review: Judicial review is carried out exclusively by an ad hoc Court-like body
2. Decentralised review: Judicial review is carried out by any judge during regular court proceedings.

Question 20

When is review carried out?

Answer 20

1. Preventative review (a priori): Judicial Review is carried out before the law has come into effect.
   
   • e.g. France with reference to statute laws;
   • Italy with reference to regional laws before 2001 amendment
2. Repressive review (a posteriori): Judicial review is carried out after the law has come into effect.

Question 21

How can one lodge a constitutional claim?

Answer 21

1. Principaliter (Abstract): It may be lodged independently of the proceedings in a specific case by:
   
   • Institutions
   • individuals
2. Incidenter (Specific): Judicial review is carried out during a regular proceeding before a regular Court

Question 22

Types of decision

Answer 22

1. cassation decision;
2. declaratory decision;
3. appellate decision;
4. interpretative decision.

first 3 declares unconstitutional provision/unconstitutionality

the 4th can declare both unconstitutionality as well as decisions of secured intepretations

Question 23

Types of cassation decision

Answer 23

1. annulment (ab initio): not only for the future but also for the past => retrospective; operates from the beginning which means that provision is anulled from the moment it enter in force; provision is completely eliminated, as if never existed
   
   • Exception: if annulment creates a prejudice to the criminal, then the annuled provision continues to be applied in that case
2. abrogation (prospectively): means that the unconstitutional provision is abrogated from the moment it is delivered => all previous cases may still carry the provision

Question 24

Declaratory decision

Answer 24

• this is only a declaration which challenges the unconstitutionality of a provision
• nothing happens to the provision as it still carries legal weight
• but it may also be of a preventative character/ preventative review
• mere invitation and not an obligation for Parliament to act on provision
• => weaker than cassation

Question 25

Appellate decision

Answer 25

• The Constitutional Court appeals to the Legislature (explicitly or implicitly, with or without time limit) to make changes to legislation it deems to be in violation of the Constitution - challenges the unconstitutionality => does not struck down as cassation right away
• have to take step by step to intervene the unconstitutionality
• Court sets a date/time limit for Parliamentary intervention, if not followed, provision will be striked down by cassation (either annulment or abrogation)
• Tries to strike balance between cassation and declaration decision

Question 26

Interpretative decision

Answer 26

• The Constitutional Court secures with its own interpretation that in the future the implementation of the statute complies with the Constitution.
• either acceptance or dismissal of unconstitutionality => declaring unconstitutionality or challenge a provision as not being unconstitutional
• centred on the interpretation of the provision - based on the fact that a provision may be interpreted in more than one way
• judge may derive one or more norm from the provision because norm = interpretation of the provision
• if judge is facing 2 interpretations and following 1 that declares unconstitutionality and the other in compliance with Cons. (conflict) => obligation for judge to go with the compliance one

Question 27

2 types of effects

Answer 27

1. Subjective: regarding subjects being affected
   
   • erga omens: the decision is generally binding; affects everyone; usually annulment has erga omens effect
   • inter partes: the decision binds only the parties of the controversy. e.g. in italian context, a dismissal decision: court declares challenge provision is not unconstitutional, which is not the same as challenge provision is constitutional - this is because if saying provision cons = no further doubts are possible => if i follow the doubt of the judge, the provision is uncons, but in the future, there might be another judge who thinks/interprets differently => only inter-partes; unless it declares completely cons. then it is erga omnes
2. Temporal: regarding timeline
   
   • ex tunc: from the moment a disputed provision took effect; goes back into the past which is connected to annulment; works respectively
   • ex nunc: from the moment the decision on unconstitutionality was taken; connected to abrogation

Question 28

Models of Cons. Review

Answer 28

1. American
2. Australian
3. Hybrid

Question 29

American model

Answer 29

Judicial Review is carried out:

1. by all regular Courts: decentralized review
   
   • any ordinary judge => diffused/decentralised
2. under the regular Court proceedings: incidenter
   
   • diffused are always incidenter
   • incidenter is automatically always repressive
3. after the law has come into effect: a posteriori.

Question 30

Austrian model

Answer 30

Judicial Review is carried out:

1. by the specialized ad hoc Constitutional Court: centralized review
   
   • judges are not allowed to perform review
2. under special proceedings: principaliter; abstract;
   
   • principaliter -> abstract, not specific
3. after the law has come into effect: a posteriori.
   
   • repressive
   • performed after law come into effect

Question 31

Hybrid model

Answer 31

Judicial Review is carried out:

1. by the specialized ad hoc Constitutional Court: centralized review;
2. special proceedings or under the regular Court proceedings: incidenter or principaliter;
3. after the law has come into effect: a posteriori.