8: Constitutional Justice Pt. 1 Flashcards
1
Q
Why does a legal system need a Supreme/Constitutional Court?
A
- Ensure certainty and equality: Actively intervene to remove the obstacles that that prevent the realization of full rights
- Ensure rule of law
- Resolve conflicts between central and decentralized governments in decentralized states
2
Q
What is the definition of constitutional justice and constitutional review?
A
Constitutional justice functions: Have to do with the pursuance of the constitution and safeguard of basic rights
Constitutional review: When a jurisdictional body compares the constitution (rigid and codified) with a subordinate legal source to check whether there exists any contradictions
3
Q
What is the difference between Supreme and Constitutional Courts?
A
- Both function to protect the supremacy of the Constitution
Supreme Court:
- Has both constitutional justice and constitutional review functions
- Part of the judiciary system (at the top)
- Check if there were any violations in the procedures of the previous courts
Constitutional Court:
- Has both constitutional justice and constitutional review functions
- Established outside of the judiciary
4
Q
What are the 4 main systems to select constitutional judges?
A
- Appointment-based system
- Election-based system
- Mixed system
- Predetermined system
5
Q
What is Dr. Bonham’s Case (1610)?
A
- The Royal College of Physicians recognized Dr. Bonham guilty of practicing medicine illegally and punished him with imprisonment and a fine, half of which was cashed by the Royal College itself
- Dr. Bonham went to Court arguing that the judges of the case were one of the parties part of the controversy
- Court ruled in favor of Dr. Bonham
- Lord Coke used the common law as a parameter, establishing the idea of the supremacy of common law over the acts of Parliament
- This never prevailed in Britain, where Parliament remains superior and the review of the acts of Parliament are impossible, as its privileges were seen to have been derived from and subsequently restricted by precedent
- The UK Supreme Court only reviews secondary sources
6
Q
What is the case of Marbury vs. Madison?
A
- There was no explicit provisions in the US Constitution declaring the Constitution’s supremacy
- Marbury was to be appointed as federal judge, and was supposed to receive a commission for entering office near the end of President Adam’s term
- The next president, Jefferson, refused to deliver the commission, so Marbury went to Court
- In court, there was a provision that allowed the court to order the government to deliver his commission
- However, there was also a provision in the Constitution addressing situations where the executive is forced to deliver commissions
- The Court decided not to appoint Marbury established the supremacy of the Constitution
- Now, when a law is considered unconstitutional after review by any court, it may be eliminated from the legal system
7
Q
What is the French Contradiction concerning the system for review of legislation?
A
- After the French revolution, France did not have a system for review of legislation
- France solved the problem by having the principle of separation of power
- This brought up a dilemma: Judges (who have been appointed by the people) are not allowed to discuss the legislation (the will of the people)
- The solution was to let the same party who passed the legislation to review the legislation before it enters into effect
- This was a weak and inadequate solution
- The power of review was then shifted to the Constitutional Committee, which was later turned into the Constitutional Council
8
Q
What is Hans Kelsen’s solution to the peculiarity of flexible constitutions?
A
- The peculiarity of flexible constitutions is that the constitution may be amended with ordinary legislations
- Kelsen’s model theorizes the Constitutional Court as a solution, which is entrusted with constitutional reform duties
- He also theorizes the hierarchy of legal sources
- According to him, (1) the review needs to happen a posteriori and (2) constitutional complaints can only be launched by constitutional bodies
9
Q
Essential components of constitutional review:
- Who carries out the judicial review?
- When is the review carried out?
- How can one lodge a constitutional claim?
A
- Who carries out the judicial review?
- Centralized
- Decentralized - When is the review carried out?
- Preventative (a priori)
- Repressive (a posteriori) - How can one lodge a constitutional claim?
- Incidenter proceeding
- Principaliter proceeding
10
Q
What are the 4 types of decisions that the Constitutional Court can make?
A
- Cassation decision: The provision is struck down with
a) Annulment
b) Abrogation - Declaratory decision: Challenges the unconstitutionality of the provision; the provision still has legal weight. It is a mere invitation and not an obligation for Parliament to act
- Appellate decision: The Court establishes that the provision is unconstitutional, but it is not immediately struck down. Parliament is urged to intervene within a certain time limit - after this time limit is passed, the Court can choose to annul or abrogate the provision
- Interpretative decision: May be either acceptance or dismissal decisions, centered on the interpretation of the provision. The Court interprets that in the future, implementation of the statute complies with the Constitution
11
Q
What are the two effects that a Constitutional Court decision can have?
A
- Subjective effect
a) Erga omnes
b) Only binding the parties of the controversy - Temporal effect
a) Ex tunc effect
b) Ex nunc effect
12
Q
What are the 3 models of constitutional review?
A
- American model: Decentralized; incidenter; a posteriori
- Austrian model:
Centralized; principaliter (abstract); a posteriori - Hybrid model:
Centralized; both incidenter and principaliter; a posteriori
