9. Constitutional Justice 2 Flashcards
Other Functions of Constitutional/Supreme Courts
- Jurisdictional disputes
- Political Parties: Decision-making related to matters of unconstitutional acts and activities.
- Referendum: Decision-making regarding its conformity to the Constitution
- Elections: Decision-making regarding the conformity of proceedings with the Constitution and Statute Law
- Check on the state of emergency
- Capacity for office
- Impeachment
Types of jurisdictional disputes
- Constitutional powers (branches of gov):
- Top government bodies
- Courts
- Territorial entities (state/regional/local)
Top government bodies jurisdictional dispute
France, Art. 39 (pars. 3&4): house and president of the Rep. arguing over the tabling of government bills
- “Government Bills may not be included on the agenda if the Conference of Presidents of the first House to which the Bill has been referred, declares that the rules determined by the Institutional Act have not been complied with.”
- “Within the conditions provided for by statute, the President of either House may submit a Private Member’s Bill tabled by a Member of the said House, before it is considered in committee, to the Conseil d’État for its opinion, unless the Member who tabled it disagrees.”
Italy, Art. 37 of Law 87/1953
- “If a region approves an act that invades the sphere of competence of the State or of another region, the State or the interested region may lodge a claim with the Constitutional Court to decide who the competence belongs to”
- With exception of statute law, all acts of state or region may be the root of a dispute
Courts jurisdictional disputes
Brazil, Art. 102.o: conflicts of jurisdiction between the Superior Tribunal of Justice and any other tribunals, between Superior Tribunals, or between the latter and any other tribunal shall be to processed and adjudicated by Federal Supreme Court whose responsibility is to safeguard the Constitution and it is incumbent upon it
Territorial entities jurisdictional disputes
- Brazil, Art. 102.f: disputes and conflicts between the Republic and the States, the Republic and the Federal District, or between one another, including their respective indirect administration entities is responsible by Federal Supreme Court
- Germany, Art. 93
- Italy, Art. 37 of Law 87/1953
Political parties
Germany, Art. 21.2:
- “Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.”
- => Socialist Reich Party (SRP) - an openly Neo-fascist political party was the first party to be banned by the Federal Constitutional Court in 1952
- Communist Party of Germany (KPD) - banned in 1956.
Referendum
Colombia, Art. 241
conformity of referendums with the Constitution
Elections
Germany Art. 41
- “1. Scrutiny of elections shall be the responsibility of the Bundestag. It shall also decide whether a Member has lost his seat.
2. Complaints against such decisions of the Bundestag may be lodged with the Federal Constitutional Court.”
Check on the state of emergency
in France, the courts are consulted by the President of the Republic when emergency measures are taken and can perform checks after 30 days to determine whether the conditions for a state emergency still exists.
Capacity for office and impeachment
- Constitutional Court may secure a vote of incapacitation of the head of state through an absolute majority and pass presidential powers to the Senate
- Moreover, Constitutional/Supreme Courts also have a power of impeachment of the head of state, the Prime Minister and other ministers or State representatives.
Sources of Italian Constitutional Court (ICC)
The Italian Constitutional Court is regulated by:
- Articles 134-137 of the 1948 Constitution;
- Constitutional laws (1/1948, 1/1953, 2/1967);
- Statute law 87/1953.
- came into effect on January 1948
should be noted that the Court did not actually start opening until 1956 => first 8 years constitutional adjudication was carried out by Supreme Court
Composititon of ICC
The Court is composed by 15 judges:
- 5 appointed by the President of the Republic;
- 5 appointed by the Parliament in joint session;
- 5 appointed by the Supreme Courts:
- 1 by the Council of state
- 1 by the Court of Auditors
- 3 by the Cassation Court
Procedures and requirements for judges
- Appointed for 9 years;
- No re-election;
- are chosen among lawyers, full professors and judges;
- granted immunity, untouchability, salary, administrative and financial autonomy,
- but refrain from any other professional, political or associational activity.
Model of constitutional review (ICC)
Hybrid system of review:
- centralized;
- a posteriori;
- both principaliter and incidenter.
The ICC Functions
exclusive jurisdiction over:
- constitutional review of laws and acts having the force of law;
- jurisdictional disputes between branches of government within the State
- jurisdictional disputes over the allocation of powers between the State and the Regions;
- Legislative
- “Other” acts
- impeachment against the President of the Republic;
- admissibility of abrogative referendum (art. 75 Const.).
- Art. 75.2 Const.
- From 1978:
- No constitutional laws
- No laws with a constitutionally-dictated content
- No unclear questions
