Powers and Jurisdiction of Constitutional Courts / Supreme Courts
Peter Bussjaeger, Mirella Johler
- Judicial review — Powers and jurisdiction of constitutional courts/supreme courts — Types of constitutional courts/supreme courts
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1 The research aim to compare constitutional courts and supreme courts (both might be summarized as last-instance courts) touches upon a number of issues relevant for comparative constitutional law, such as the civil law–common law divide, constitutionalism, court organization, or the division of powers, both horizontally (legislative, executive, and judiciary) and vertically (ie a federal division of powers). Even though history suggests that a migration of constitutional ideas (Perju 1304 et seq) has spread those ideas on a global scale (borrowing and migration of constitutions), a closer look at distinct countries and their legal families indicates that comparative endeavours should follow a functionalist approach. This is because the migration of constitutional ideas has yielded mixed types (eg Brazil combines continental Europe’s legal tradition of statuary laws (civil law) with US-style federalism and court structure (Rodrigues and others 110)), as well as overlapping conceptual configurations, each having nuanced meanings: exemplarily, the English concept of the rule of law and the German idea of Rechtsstaatlichkeit both equal the superiority of the law, but while the rule of law stresses the primacy of the common law and equity’s injunctions vis-à-vis monarchical agitation, the concept of Rechtsstaatlichkeit foresees a (parliamentary) state in which any executive act (both administrative and juridical) is based on legislated provisions (Grote 269 et seq). Thus, a functionalist approach (Jackson 62 et seq) allows the comparative endeavour to detach itself from a strict adherence to terms and definitions, rather focusing on the specific task at hand, namely the judicial review by last instance courts.
B. The Role and Status of Constitutional Courts and Supreme Courts
2 ‘Une Constitution est un corps de lois obligatoires, ou ce n’est rien; si c’est un corps de lois, on se demande où sera le gardien, où sera la magistrature de ce code?’ (Starck 16). Abbé Sieyès’s famous quote implies that countries might choose to establish courts specializing in constitutional matters in order to safeguard compliance with constitutional norms (Ferreres Comella (2011) 265). Contemporary literature defines constitutional courts as constitutionally established, independent judicial organs of a state, whose central purpose is to defend the normative superiority of constitutional law within the legal order (exemplarily: Stone Sweet 817; Ferreres Comella (2011) 265). Thereby, constitutional courts are perceived as distinct institutions which are separate from other judiciary bodies (Ferreres Comella (2011) 265). Almost all members of the civil law family exhibit institutionalized constitutional courts, such as Austria, Bulgaria, the Czech Republic, France, Germany, Italy, Japan, Lithuania, Romania, South Africa, and South Korea (Ferreres Comella (2011) 265).
3 By contrast, supreme courts act as the highest (ordinary) courts within their jurisdictions. Supreme courts are mandated to provide subordinated appellate, and trial courts with legal clarity and uniform interpretation of the law, usually in the domains of civil and criminal law, but not necessarily in constitutional law. Further, administrative law has developed into a body of regulatory law enforced by distinct administrative courts (such as in Austria; Kelsen (1942) 186) or by specialized benches (such as in South Korea) (Ginsburg (2010) 121). The civil law tradition is by and large marked by the existence of two parallel judiciary systems along the public law - private law divide (Barnes 337), culminating in the existence of two distinct supreme courts: one supreme court for civil and criminal matters, and a separate supreme court for administrative cases. The Austrian Verwaltungsgerichtshof (Administrative Supreme Court), according to the Constitution of the Republic of Austria: 1 October 1920 (as amended to 15 May 2018) Main Text, Chapter VII Constitutional and Administrative Justice, Part A Administrative Justice, Articles 129 et seq (Austria) resides organizationally separate from the Oberste Gerichtshof, the Supreme Court for civil and criminal matters: Constitution of the Republic of Austria, Chapter III Federal Execution, Part B Jurisdiction of the Court of Justice, Article 92 (Austria). In line with the abovementioned definition, constitutional courts may then form the third judicial pillar.
4 Compared thereto, the common law world features judicial systems in which a single supreme court serves as the last authority over civil, criminal, administrative (including taxes), and constitutional matters (Fleiner 226). Thereby, shared cultural and historic backgrounds, as well as the doctrine of stare decisis’ potential for non-binding borrowings of reasoning from other common law countries (exemplarily, Gentili 378 et seq analyses the usage of US American precedent for the solution of constitutional cases by the Supreme Court of Canada (Cour suprême du Canada)) are believed to create more commonalities within the common law world than within the civil law family; the latter of which is divided into the Germanic and the Roman branches (Fleiner 226; Mak 409). As discussed below, what is known as the ‘decentralized model’ of constitutional review (Stone Sweet (2002) 817), which is characteristic for the modus operandi of judging constitutional cases in common law countries and was coined in the US, Article III section 1 of the Constitution of the United States of America: 12 July 1788 (as amended to 5 May 1992) Main Text (US), holds that the judicial power of the federal government shall be exercised by one Supreme Court and by inferior courts that Congress might decide to establish. The Constitution granted the Supreme Court of the United States original jurisdiction over cases to which states are party (and cases involving diplomats), but allowed Congress to determine the size and powers of the court(s). The Judiciary Act of 1789 (An Act to Establish the Judicial Courts of the United States, 24 September 1789 (US)) confined the US Supreme Court to sitting over appellate claims of civil cases involving multiple states, and cases in which state courts ruled on federal statutes (component federal units).
5 In 1803, the landmark decision in the Marbury v Madison Case (US) introduced the principle of judicial review: notwithstanding the circumstance that the US Constitution had not explicitly conferred on the US Supreme Court the power of reviewing Acts of Congress, this power needs to be inferred from the nature of judicial power which shall, in part, be extended to all controversies, which the US is party to and which concern the Constitution, and the federal laws of the US (Olechowski 80 et seq). Yet, the circumstance that not only the Supreme Court as such, but the American judiciary as a whole is entitled to embark on judicial review let scholars speak of the ‘diffused’, ‘decentralized’, or ‘American model’ (Stone Sweet (2002) 817). In other words, the US Supreme Court might be seen as ‘a “constitutional tribunal” … given the significant percentage of constitutional cases it decides every year’ (Ferreres Comella (2011) 265). Furthermore, ‘the American model of judicial review accords American courts a very significant political role’ (Olechowski 82), with the Norwegian Højesteret (Constitution of Norway: 17 May 1814 (as amended to 6 May 2014) Main Text, Chapter D The Judiciary, Arts 88 et seq (Nor)) as the only European imitator throughout the nineteenth century (Olechowski 82). In contrast, the ‘centralized type of constitutional review’ as practiced by civil law countries, such as Austria or France, confines constitutional review powers to a single judicial organ (Cappelletti 1034).
6 Moreover, court structures can be further distinguished between unitary and federal countries. Centralized states such as France or Japan exhibit unitary judicial systems, in which all courts (ie both ordinary and administrative courts) are composed of unified, nation-wide, pyramidal systems of tribunals. By contrast, federations might exhibit more complex court structures, reflecting the fragmentation of governmental powers between the central authority and local authorities (Halberstam 589 et seq). Challenges to constituent units’ laws by the federal executive, and claims against federal acts raised by constituent units’ governments, as well as citizens’ claims to scrutinize legislation or administrative acts for their compliance with the federation’s division of (legislative) competences, constitute a considerable amount of judicial review cases (Kincaid and Aroney 9).
7 Lastly, countries which have not established a separate constitutional court or which have not entitled their supreme court to decide upon constitutional questions might reserve the respective function for legislative or executive organs. Exemplarily, the Ethiopian House of Federation (Constitution of the Federal Democratic Republic of Ethiopia: 8 December 1994, Main Text, Part Two The House of Representatives, Art. 62 s 1 (Eth)) is responsible to arbiter ‘disputes concerning acts of (federal and state) legislatures or acts of executives’ (Hessebon and Idris 185).
C. Kelsen’s Heritage of Separate Constitutional Courts
8 After the First World War, Austrian scholar Hans Kelsen transferred the ideas (Kelsen (1942) 186 et seq) promulgated by Alexander Hamilton and Abbé Sieyès (Starck 16 et seq) into a positivist (Kelsen (1948) 377 et seq) manifestation, namely by drafting the Austrian Federal Constitution and the Constitutional Court Act (Verfassungsgerichtshofgesetz) Constitutional Court of Austria (Verfassungsgerichtshof) Constitution of the Republic of Austria, Main Text, Chapter VIII Constitutional and Administrative Justice, Part B Constitutional Justice, Arts 137 et seq (Austria). The latter is regarded as the first explicitly dedicated constitutional court. The amendment of 1 October 1920 entrusted Austria’s Constitutional Court to review any law by the Austrian states and the federation. Its precursor was the Austro-German Constitutional Court which was active during 1919–20. Similar to Austria, the likewise new Constitutions of the Czechoslovakian Republic (Constitutional Charter of the Czechoslovak Republic: 29 February 1920 (Czechoslovakia)) and the Principality of Liechtenstein (Ferreres Comella (2004) 461; Constitution of the Czech Republic: December 16, 1992 (as Amended to 14 November 2002), Main Text, Chapter IV Judicial Power The Constitutional Court, Arts 83–9 (Czech); Constitution of the Principality of Liechtenstein: 5 October 1921 (as amended to 15 September 2003) Main Text, Chapter VIII The Courts, s D The State Court, Arts 104–5 (Liech)) introduced Constitutional Courts. The Czechoslovakian Constitutional Court started its work only in November 1921. Liechtenstein’s State Court had been foreseen by the Constitution of the Principality of Liechtenstein (Main Text, Chapter VIII The Courts, s D The State Court, Arts 104–5 (Liech)), but was only enacted in 1925 after the State Court Act (State Court Act, LGBl 1925 Nr. 8 LR 173.10 (Liech)) had been passed by the principality’s Diet.
9 Kelsen’s expertise, both as a practitioner while drafting the Austrian Federal Constitution, and as a theoretician (Stone Sweet (2012) 79), has prompted literature to not only speak of the ‘centralized’ or ‘European’ model, but also to refer to it as the ‘Austrian’ or ‘Kelsean’ type of constitutional review (Stone Sweet (2002) 818; Tomuschat 251). In essence, the Kelsean system is characterized by two fundamental assumptions. First, the powers of constitutional review are bestowed upon a single judicial body—the constitutional court. Secondly, the constitutional court remains organizationally detached from civil and criminal justice. Although Kelsen had introduced his model more than a century after Marbury v Madison (1803) (US) (Stone Sweet (2002) 818), the ‘centralized’ type of constitutional review has developed into a widespread and broadly recognized tool of safeguarding constitutional norms and values (Garlicki 44), arguably combined with parliamentarism (Stone Sweet (2012) 78). Part of the success of the Kelsean type could be attributed to the sociohistorical background of the model’s period of origin: Austria was politically divided between the conservative and the social-democratic camps. The Austrian Constitution was thus created as a set of ‘rules of the political game’, rather than a set of values (which is why in Austria one speaks of the ‘Spielregelverfassung’: Adamovich and others, recital 01.031).
10 After the Second World War, Western Europe’s 1950s were marked by the ‘new constitutionalism’ movement—a movement which sought to reject the dogma of legislative sovereignty (Stone Sweet (2012) 79) by prioritizing human rights as a means of constitutional review, and achieved legitimacy of state (Stone Sweet (2002) 816; Stone Sweet (2012) 83). Notably, the German, and the Italian Constitutional Courts were constructed along the Kelsean foundations (Tomuschat 245), but—especially in Italy arguably varied (Merryman and Vigoriti 665 et seq). Compared to the Kelsean type, the nineteenth century based Constitutional Council of France (Conseil Constitutionnel) was characterized by the Rousseau-like (volonté général) and Napoleonic beliefs that the state—whose purpose was to change society—and its laws should be immune from judges (Fleiner 229). In regard to administrative matters and respective court procedures, it was believed that the state should not be a party on equal footing with citizens (Fleiner 229). Despite the year’s long reluctance to accept constitutional review, the Conseil Constitutionnel (Constitution of the Fifth French Republic: 4 October 1958 (as amended to 23 July 2009) Main Text, Title VII The Constitutional Council, Arts 56–63 (Fr)) has developed into a genuine but different type of constitutional court (Garlicki 44). Variations of the French type of constitutional review can be found in the Maghreb region; exemplarily Tunisia’s Constitutional Court is comparably programmed to review draft laws and proposals (Constitution of Tunisia: 27 January 2014, Main Text, Title 5, Part Two The Constitutional Court, Art. 118 (Tunis)). When looked at side by side, one might argue that the centralized system of judicial review corresponds better with the continental European understanding of a separation of powers and the civil law tradition (Ferreres Comella (2011) 268). Thus, the emergence of a separate constitutional court may be regarded as one of the most typical features of continental constitutionalism. The Nordic countries (partially due to their inherited systems of ombudsman figures) remain major exceptions thereof.
11 In the decades to come, comparable paths would be pursued in Africa, Asia, and Latin America (Ginsburg and Elkins 1431). In East Asia, constitutional courts—exemplarily in Indonesia (Constitution of the Republic of Indonesia: 17 August 1945 (as amended to 11 August 2002) Main Text, s IX The Judicial Powers, Art. 24A (Indon)), South Korea (Constitution of the Republic of Korea: 17 July 1948 (as amended to 29 October 1987) Main Text, Chapter VI The Constitutional Court, Art. 111 (S Kor)), and Mongolia (Constitution of Mongolia: 13 January 1992 (as amended to 14 December 2000) Main Text, Chapter 5 The Constitutional Court, Arts 64 et seq (Mong))—‘emerged as real constraints on political authority’ (Ginsburg (2015) 47 et seq) in the quest for modernization and state-building (Saunders 83). Remarkably thereto, the South Korean Constitutional Court stated immediately after its institutionalization that ‘equality under the law requires treating the state no differently than a private citizen or corporation’ (Ginsburg (2015) 54). Japan (Constitution of Japan: 3 May 1947, Main Text, Chapter VI The Judiciary, Art. 81 (Japan)) and Taiwan (Constitution of Taiwan: 25 December 1946 (as amended to 28 July 1994) Main Text, Chapter VII, Arts 77 et seq (Taiwan)) demonstrate two further examples of specialized benches for constitutional review (Furuno 53). After the end of apartheid, the new South African Constitution established a constitutional court to ensure the provision enshrined in section 1 paragraph c (of the supremacy of the Constitution) and the rule of law (Constitution of the Republic of South Africa: 4 February 1997 (as amended to 13 August 2013) Main Text, Chapter 8 Courts and Administration of Justice, Arts 166(a) and 172(2) (S Afr)). Technically, South Africa’s Constitutional Court was enacted as a court of final jurisdiction on all constitutional matters, including the constitutional framework for the country’s multi-level government (Constitution of the Republic of South Africa, Main Text, Chapter 8 Courts and Administration of Justice, Art. 168(3) (S Afr)). A constitutional court was considered necessary in light of the country’s apartheid past (Steytler 336). Similarly, the breakdown of communism fostered the installation of constitutional courts in Eastern Europe (except for Estonia), and in Russia (Constitution of the Russian Federation: 12 December 1993 (as amended to 21 July 2014) Main Text, s I, Chapter 7 Judicial Power, Arts 125 and 128 (Russ)); Morschtschakowa 135 et seq). Loosely speaking, the constitutional courts in Eastern Europe follow the Kelsean type of ‘centralized review’, although nuances (such as the number of judges) vary (Luchterhandt 298 et seq). In brief, the majority of the world’s (written) constitutions delegate judicial review powers to separate constitutional courts, rather than to (ordinary) supreme courts (Ginsburg and Elkins 1434).
D. Constitutional Courts and Supreme Courts in Federal Systems
12 As a general rule, federal and unitary states organize their judicial systems dissimilarly (federalism; unitary state). By and large, federal states exhibit court systems in which judicial powers are divided between the federation and the constituent units. Last instance courts, both supreme courts and constitutional courts, might be installed at the level of the federation as a means to provide juridical unity in matters of nationwide importance (Gentili 385 et seq).
13 In the US, the division of juridical powers between the federation and the states prompted a system in which the doctrine of stare decisis holds true only within the territorial limits of a state (Billings 18). US American federal circuit courts are bound to follow Supreme Court precedents (Billings 19). The Supreme Court serves as a last instance court for the interpretation of federal statutes, cases involving laws of multiple states, and—as a Supreme Court subdued to the model of ‘decentralized constitutional review’—constitutional questions, but it refrains from applying federal laws on state law cases (compare thereto: Erie Railroad Co v Tompkins (1938) (US); Hoffer and others 23 et seq).
14 The majority of federal constitutional courts are entitled to decide upon juridical disputes between the federation and the component units, or among the federation’s component units. As a consequence of their jurisdiction over federal matters, and/or as a necessary prerequisite thereto, the power to decide upon federal disputes has since often been institutionalized at the level of the federation (Tomuschat 263). Interestingly, the Swiss Federal Supreme Court only hears disputes over the cantonal laws which are suspected of violating (federal) constitutional norms; yet the Swiss Federal Supreme Court is not entitled to repeal federal laws which are unconstitutional (Federal Constitution of the Swiss Confederation: 18 April 1999 (as amended to 23 September 2018) Chap IV Federal Supreme Court and other Juridical Authorities, Art 189 Jurisdiction of the Federal Supreme Court (Switz)). Akin to disputes over the division of competences, the Constitutional Court of Italy (La Corte Costituzionale Della Repubblica Italiana) (Constitution of the Italian Republic: 15 January 1948 (as amended to 20 April 2012) Main Text, Title V Regions, Provinces, and Municipalities, Art. 127 (It)) plays an important role in keeping the country at balance by interpreting the competencies assigned to the national government and the regions (Italy is considered to be a ‘region state’ rather than a ‘federation’; Caravita di Toritto 16). The Constitutional Court of Spain (Tribunal Constitucional de España) (Constitution of the Kingdom of Spain: 29 December 1978 (as amended to 28 August 2012) Main Text, Part IX The Constitutional Court, s 161, para. 2 (Spain)) is considered to perform a similar function (Espiérrez 43), although the Catalonia question has turned the Court into an epicentre of political conflict (Casanas Adam 367).
15 The Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) (especially through the controversia constitucional procedure provided by Art. 105 to settle controversies between federal, state, and municipal officers) has been perceived as an arbiter determining the limits of federalism (Juárez 274; Constitution of the State of Mexico: 5 February 1917 (as amended to 16 September 2017) Main Text, Chapter IV The Judicial Branch, Art. 105 (Mex)). Evidence from Nigeria (such as the cases AG Bendel v AG Federation (1981) (Nigeria), AG Ogun v AG Federation (1982) (Nigeria), and AG Ondo v AG Federation (1983) (Nigeria)) indicates that diverse political issues can be disputed along federal lines, such as electoral governance or revenue allocation (Suberu 293 et seq). In other words, constitutional disputes in federal countries might not be restricted to the (fundamental) question of the division of competences, but rather, the apple of discord is quartered through the lenses of the federal division of competencies. Hence, challenging the constitutionality of a given legislative or administrative act serves as a powerful political instrument. Comparably, the question of which organ of the state is allowed (or forbidden) to act in a certain manner is discussed in unitary states as well, but on a horizontal level; exemplarily, Article 87 of the Czech Constitution (Constitution of the Czech Republic: 16 December 1992, Main Text, Chapter 4 Juridical Power, Art. 87 (Czech)) allows state organs to appeal to the Constitutional Court of the Czech Republic (this procedure is modelled after the German Organstreit procedure which allows state organs to clarify constitutional conflicts; Luchterhandt 322).
16 The understanding of federal judicial review is completed by considering two types of federalism, namely cooperative and dual federalism (Zimmermann 15 et seq). While the former type is largely associated with Germany and Austria, the latter is said to present US federalism. Seemingly in line with the designation of dual federalism, the US possesses a dual court system composed of federal and state courts. Both layers of courts are made up of first instance courts (district courts), appellate tribunals (courts of appeals), and supreme courts. The system is topped by the US Supreme Court. For dogmatic purposes, one might prefigure two stacked but clear-cut juridical spheres. This is due to the fact that most cases, including constitutional disputes, are ultimately resolved within the court system—state or federal—in which they originate (Fix, Kingsland, and Montgomery 149). If a case is based exclusively on state law (states laws are required to be genuinely state law and adequate means to solve the case), that state law must be applied in any instance, even by the Supreme Court; the latter cannot apply federal laws on a state law case (compare thereto Erie Railroad Co v Tompkins (1938) (US)). In accordance with the model of ‘decentralized review’, interpretational authority on constitutional matters is shared between the US Supreme Court and the supreme courts of the states. The Supreme Courts of Canada (Canadian Constitution Act: 29 March 1867, Main Text, Chapter VII The Judicature, Art. 101 and The Supreme Court Act: 8 April 1875 (as amended to 12 December 2013) Main Text, s 35–6 (Can)) and Australia (Commonwealth of Australia Constitutional Act: 1 January 1901 (as amended to 27 May 1967) Main Text, Chapter 3 The Judicature, Art. 73 (Austl)) only decide upon cases which address the relationships between the central governments and the local authorities, or between the local authorities themselves. Any other case is settled within the states’ or provinces’ own systems of courts.
17 Brazil combines the civil law tradition of written statuary laws (and its ingrained hierarchy) with US-style federalism. Thus, all the courts ‘have [the] authority to construe constitutional and ordinary norms and to order compliance therewith by the executive and legislative branches, in both the state and federal orders of government’ (Rodrigues, Lorencini, and Zimmermann 115; Constitution of the Federative Republic of Brazil: 5 October 1988 (as amended to 24 August 2015) Main Text, Chapter III The Judiciary, s 1: General Provisions, Art. 97 (Braz)). A quorum of eight judges of the Supreme Federal Tribunal of Brazil (Supremo Tribunal Federal) is vested with the power to establish precedents (súmulas vinculantes) which are binding for all federal and state courts, as well as for the branches of government (Rodrigues and others 115). A 2011 decision by the Mexican Supreme Court opened constitutional control to state courts (Juárez 263 with reference to Sistema de Control Constitutional en el Orden Jurídico Mexicano (2011) (Mex)).
18 In India, the term ‘constitutional court’ is jointly applied to the Supreme Court of India and the state high courts, all of which are ‘expressly granted the power of judicial review predicated on the fundamental rights of citizens, federal division of powers in the Constitution, and limited separation of powers … for both the union and state governments’ (Tewari and Saxena 223, argument elaborated on 239 et seq). Although constitutional debates are not reserved for the Supreme Court, India’s court structure is an integrated one and less of a dualist-federal-and-state system like that of the US (Tewari and Saxena 239). Article 141 of the Indian Constitution (Constitution of India: 26 January 1950 (as amended to 11 August 2018) Main Text, Part V The Union, Art. 141 (India)) mandates state courts and local courts to strictly adhere to the jurisprudence of the Supreme Court in constitutional, civil, and criminal matters. Hence, one might argue that India’s court structure conflates elements of the cooperative and the dualist type of federalism. Namely, the unified and hierarchical court structure resembles the cooperative type of federalism.
19 In Germany, the federation holds five supreme courts and an additional Federal Constitutional Court of Germany (Bundesverfassungsgericht) (Basic Law of the Federal Republic of Germany: 29 May 1949 (as amended to 21 July 2017) Main Text, Chapter IX The Judiciary, Art. 95 (Ger)). Each of the five supreme courts has jurisdiction over a distinct subject matter (civil and criminal justice, general administrative matters, employment and trade-union disputes, social policy, and revenues/taxation). Yet, all of these courts sit over cases arising from both federal and state laws. The unified court structure becomes apparent by the fact that disputes based on (administrative) state law are ultimately adjudicated by the federation’s supreme courts in their function as national last instance courts.
20 In Austria, the federation is constitutionally responsible to provide civil and criminal substantial and procedural law, and thus the respective courts. By contrast, administrative legislation is divided between the federation and the constituent units (Constitution of the Republic of Austria, Main Text, Chapter I A. General Provisions, Arts 10–15 (Austria)). Hence, the country’s eleven administrative courts are partly organized by the federation, and partly by the component units (Bussjaeger (2017) 83 et seq.; Constitution of the Republic of Austria, Main Text, Chapter I A. General Provisions, Art. 10, s 1, lit a and Chapter VIII Constitutional and Administrative Justice, Part A Administrative Justice, Art. 136 (Austria)). The federal Administrative Supreme Court (Verwaltungsgerichtshof) presides over cases comprised of either federal, and/or component units’ law cases (Constitution of the Republic of Austria, Main Text, Chapter VIII Constitutional and Administrative Justice, Part A Administrative Justice, Art. 133 (Austria)). Finally, the Austrian Constitutional Court (Verfassungsgerichtshof) is constitutionally equipped to review both federal and component unit laws (Constitution of the Republic of Austria, Main Text, Chapter VII Constitutional and Administrative Justice, Part B Constitutional Justice, Art. 140 (Austria)).
21 Compared thereto, the Constitutional Court of the Russian Federation (Konstitutsionnyi Sud Rossiiskoi Federatsii) oversees only laws and normative acts by the federal legislative and executive, but also (similar to its Austrian counterpart) the federation subjects’ constitutions, as well as treaties between the federation and the subjects (Constitution of the Russian Federation, Main Text, s 1, Chapter 7 Judicial Power, Art. 125, s 2 (Russ); Morschtschakowa 143).
22 The Argentine writ of amparo (Federal Constitution of Argentina: 1 May 1853 (as amended to 24 August 1994) Main Text, Part 1, Chapter 1 Declaration, Rights and Guarantees, s 31 and Part 2 Authorities of the Nation, Third Division, Chapter II The Powers of the Judiciary, s 116 (Arg))—as a procedure of constitutional complaints—indicates that federal countries require individuals to observe which complaints about which unconstitutionalities (caused by different levels of government) can be filed at which courts, ie federal or provincial courts, especially in light of their concurrent jurisdictional competences. Yet, given that the admissibility of the amparo complaint is granted by the federal constitution itself (Federal Constitution of Argentina, Main Text, Part 1, Chapter 1 Declaration, Rights and Guarantees, s 31 (Arg)) and that the provinces had to adjust themselves to the Federal Constitution, provincial courts could not reject the protection of fundamental rights by arguing that provincial constitutions had not provided them with corresponding legal provisions (Reyven 190).
E. Types of Judicial Supervision
1. Review Powers
23 Procedurally, last instance courts can be grouped into courts of cassation and courts which are entitled to decide upon the merits of the case. Received from the German legal order, the Constitutional Court of Korea (Constitution of the Republic of Korea, Main Text, Chapter V The Courts, Art. 107 s 1 (S Kor)) can decide upon the merits of a case submitted by subordinated courts to determine the constitutionality of a law at issue in a trial (Park 42). The Supreme Court of Tunisia functions as a court of cassation, with one criminal and three civil divisions (Constitution of Tunisia, Main Text, Title 5 The Judicial Authority, Part 1 The Judiciary: The Justice System, Administrative and Financial Judiciary, s Two: The Judicial System, Art. 115 (Tunis)). These types of last instance decision-making can be combined and differentiated: for instance, the Austrian Administrative Court can decide upon the merits of the case if the files suggest that a case is ready for solution, but equally, the challenged lower court’s verdict can be set aside due to illegal content, or infringements of essential procedural requirements (Administrative Court Act: 4 January 1985 (as amended to 4 August 2018) s 42, para. 2 and 4 (Austria)). These decision-making mechanisms can otherwise be apportioned between a country’s courts, such as between the Italian Constitutional Court and the Supreme Court of Italy (Merryman and Vigoriti 665 et seq). In brief, a country’s legislator might opt for one or the other model, depending on political preferences, or legal traditions.
24 Paradigmatically, constitutional courts, or supreme courts in their functions as constitutional reviewers are vested with the power to scrutinize legislation, administrative acts, or treaties under international law for their compatibility with national constitutions (Ginsburg and Elkins 1431; Tomuschat 256). In accordance with the functionalist perspective, the following aspects of constitutional review should be highlighted: interpretation of constitutions, and/or subordinated laws; abstract review, or concrete/incidental review; the annulment of laws; and individual complaints procedures (Stone Sweet (2012) 86; remedies at constitutional courts / supreme courts). Abstract review can be differentiated between a posteriori review of laws, and a priori review of draft bills. The term ‘concrete review’ refers to review by reason of pending cases (Stone Sweet (2012) 86).
25 In order to include supreme courts in the analysis, the examination of review of lower court decisions should be detailed to differentiate between the competence of cassation of the verdict, or issuing merit-based verdicts. Yet, dogmatic concepts may overlap in reality; for instance, the Austrian Constitutional Court can declare a statute on which the decision of the case depends, as unconstitutional and thereby set aside the lower (administrative) court’s judgment (Constitution of the Republic of Austria, Main Text, Chapter VII Constitutional and Administrative Jurisdiction, B. Constitutional Jurisdiction, Art. 144 (Austria)). The recurso extraordinario (Federal Constitution of Argentina, Main Text, Part 2 Authorities of the Nation, Third Division, Chapter II The Powers of the Judiciary, s 116 (Arg)) is a remedy in front of the Supreme Court of Argentina (Corte Suprema de Justicia de la Nación) to request a review of the constitutionality of laws or decrees relevant for the solution of the pending case. The Supreme Court may decide as a court of cassation upon the constitutionality, but later decide itself upon the merits of the respective case (Reyven 188). The Egyptian Court of Cassation (Constitution of the Arab Republic of Egypt: 18 January 2014, Main Text, Arts 107, 189, 209 (Egypt)) monitors lower courts’ adherence to established laws, but the so-called Supreme Constitutional Court of Egypt (Al-Mahkamah al-Dusturiyah al-‘Ulya) is mandated to declare laws as unconstitutional (Constitution of the Arab Republic of Egypt, Main Text, s Four: The Supreme Constitutional Court, Arts 191 et seq (Egypt)). Below, these aspects will be clarified, each accompanied by illustrative examples:
(a) Authorized Interpretation
26 Article 106 of the Constitution of the Russian Federation (Main Text, Chapter 5 The Federal Assembly, Art. 106 (Russ)) determines that the Constitutional Court’s interpretation of the constitution is official and binding. Applications for any such interpretation may be submitted only by the President of the Federation, both chambers of the Duma, the government, and the organs of executive state power of the federation subjects (Art. 105 (Russ)). Given the limited number of entities entitled to appeal, the interpretation procedure is counted as a separate procedure, detached from the usual base that constitutional interpretation serves as a sine qua non for any procedure in front of a constitutional court (Morschtschakowa 147). Within the system of the European Union, the Preliminary Ruling Procedure (Treaty on the Functioning of the European Union: 13 December 2007 (as amended to 26 October 2012) Part 6 Institutional and Financial Provisions, s 5 The Court of Justice of the European Union, Art. 267) can be regarded as a procedure of authorized interpretation. This is because technically, European Union Law (both the treaties and the secondary law) is interpreted, even if the submitted question has arisen during the application of national law by national courts (Rosas 179 et seq). Apart from distinct interpretative procedures, constitutional interpretation serves as a telling feature of a country’s legal culture: it is assumed that
precedents … and the interpretation of older constitutions [plays a larger role in common law jurisdictions]; academic opinion has more influence in Germany than in common law jurisdictions; original intentions or understandings are relied on more in the United States and Australia than elsewhere; ‘structural’ principles play a more pervasive role in Canada, Germany, India, and South Africa than in Australia or the United States; justice and public policy seem more influential in India … and comparative law is given much less attention in the United States than in the other countries (Goldsworthy 696).
In Austria, the Constitutional Court tends to use comparative research, yet often without explicit reference (Gamper 244).
(b) Abstract and Incidental Review
27 Abstract review ‘takes places in the absence of litigation … ([ie in the absence of] a “concrete case or controversy”)’ (Stone Sweet (2012) 86) and can be further differentiated between a priori review (ie review undertaken before the statute enters into force) and a posteriori review. Constitutional review as performed in France (Constitution of the Fifth French Republic, Main Text, Title VII The Constitutional Council, Arts 56–63 (Fr)), Romania (Constitution of Romania: 21 November 1991 (as amended to 18 October 2003) Main Text, Title V The Constitutional Court, Art. 146 (Rom)), and Tunisia (Constitution of Tunisia, Main Text, Title 5, Part Two The Constitutional Court, Art. 118 (Tunis)) depict examples of the abstract a priori type of review, because norms are scrutinized before they enter into force. Therefore, this type of judicial review is also referred to as ‘preventive judicial review’ (Luchterhandt 313). The reference procedure allows the Canadian High Court to be requested by the federal and provincial governments to state its opinion on draft bills (Supreme Court Act: 8 April 1875 (as amended to 12 December 2013) Main Text, s 53 (Can)). A priori review thus seems to be a centralized element in a system otherwise characterized by the decentralized type of constitutional review (Brouillet 147 et seq).
28 By contrast, the Russian Procedure of Constitutional Interpretation (Constitution of the Russian Federation, Main Text, s 1, Chapter 6 The Government of the Russian Federation, Art. 116 (Russ)) can be classified as a form of an a posteriori abstract review, but arguably as a review of the Constitution itself. Laws, which have been promulgated, but not yet applied, can be submitted to the constitutional courts of Germany (Basic Law of the Federal Republic of Germany, Main Text, Chapter IX The Judiciary, Art. 93 (Ger)), Italy (Constitution of the Italian Republic, Main Text, Title VI Constitutional Guarantees, s I The Constitutional Court, Art. 134 and 136 (It)), and Spain (Constitution of the Kingdom of Spain, Main Text, Part IX The Constitutional Court, s 161 (Spain)). These appeals might be submitted by federal or regional governments and legislators (for instance: Constitution of the Italian Republic, Main Text, Title V Regions, Provinces, and Municipalities, Art. 127 (It)), or ombudsman figures such as the Spanish Defender of the People (Constitution of the Kingdom of Spain, Main Text, Part IX The Constitutional Court, s 162, para. 1, lit b (Spain)) (Stone Sweet (2012) 87).
29 Concrete review is incidental because the review of legislation or administrative acts under a constitutional perspective serves as an intermediate proceeding or extraordinary remedy in ongoing litigation in front of ordinary courts (Stone Sweet (2012) 86; Ferreres Comella (2011) 267). Exemplarily, South Korea laws are reviewed by the Constitutional Court for their constitutionality by submissions of subordinated courts upon applications by the parties involved (Constitution of the Republic of Korea, Main Text, Chapter V The Courts, Art. 107, s 1 (S Kor); Park 44 et seq). In Slovenia, incidental submissions are not restricted to the courts, but can be raised by the public prosecutors, notaries, and the Court of Auditors (Zakon o ustavnem sodišcu (Constitutional Court Act), št. 15/94 z dne 18.03.1994 (as amended to 31 December 2012), Art. 23a, s 1 (Slovn); Luchterhandt 318) as well. The Mongolian Tsets (Constitution of Mongolia, Main Text, Chapter 5 The Constitutional Court, Arts 64 et seq (Mong)) maintained that the 1992 Constitution had not given it jurisdiction over ordinary courts’ decisions with the result that matters, such as criminal law, are factually inviolable on constitutional grounds (Ginsburg (2015) 63). Whereas countries vary with regard to the types of norms (laws, decrees, any public normative act, etc.) which can be reviewed, it seems to be a general principle that the reviewed provisions must be relevant for the pending case (Präjudizialität; Luchterhandt 319). Section 75–7 of the Australian Constitution (The Commonwealth of Australia Constitutional Act: , Main Text, Chapter 3 The Judicature, Art. 73 (Austl)) limits the High Court to jurisdiction on ‘matters’; as a result, the Australian High Court’s avoidance of advisory opinions makes the former another instance of incidental review (Aroney 47).
(c) Constitutional Complaints
30 Verfassungsbeschwerden (Constitution of the Republic of Austria, Main Text, Chapter VIII Constitutional and Administrative Jurisdiction B. Constitutional Jurisdiction, Art. 144 (Austria)) or amparo suits (Constitution of the Kingdom of Spain, Main Text, Part IX The Constitutional Court, s 161, para. 1, lit b (Spain)) allow individuals to take refuge to the Constitutional Court once the remedies in front of ordinary courts have been exhausted. By raising termed individual complaints, appellants claim that their constitutionally granted rights have been violated (Stone Sweet (2012) 86). This procedure was first introduced in Austria and was later enhanced by receptions in Germany and Spain (Garlicki 46). Experiences with anti-Soviet resistance movements spread the institutionalization of the individual complaints procedures further, exemplarily to the Czech Republic (Constitution of the Czech Republic, Main Text, Chapter 4 Juridical Power, Art. 87 (Czech)), and Albania (Constitution of the Republic of Albania: 28 November 1998 (as amended to 13 January 2007) Main Text, Part Eight, The Constitutional Court, Art. 131, lit h (Alb)) (Luchterhandt 323 et seq).
31 By resolving preliminary questions of the constitutionality of statutes, or reviewing the constitutionality of final judicial decisions, constitutional courts participate at the adjudication of individual cases. Thus, individual complaints can be seen as a departure from the division of powers; as it is the Kelsean type of constitutional courts which interferes with competences traditionally associated with supreme courts (Garlicki 46 et seq)—a problem which does not arise in the same way in countries which live by decentralized constitutional review (Stone Sweet (2012) 77).
(d) The Review of Court Decisions: Cassation or Merits
32 The competence to review lower court decisions can be designed as either the power of cassation, and/or the power to re-examine the facts, and establish an own verdict upon the merits of the case. Thereto, it is of crucial importance to consider the difference between supreme courts as last instances for ordinary matters, supreme courts as constitutional arbiters, and constitutional courts. This is because both constitutional courts and supreme courts could (theoretically) either repeal lower court decisions, and/or establish their own decisions on the merits of the case.
33 Within the court structure of the decentralized type of constitutional review, supreme courts might always obtain the question of constitutionality of provisions, or normative public acts through the parties’ recourse to appeal. Thereby, one can differentiate between supreme courts as courts of cassation, and supreme courts which can render verdicts based on the merits. The supreme courts of France (Constitution of the Fifth French Republic, Main Text, Title VIII On Judicial Authority, Art. 65 (Fr)), Belgium (Constitution of the Kingdom of Belgium: 7 February 1831 (as amended to 24 October 2017) Main Text, Chapter VI On Judicial Power, Art. 147 (Belg)), Luxembourg (Constitution of the Grand Duchy of Luxembourg: 22 October 1868 (as amended to 18 October 2016) Main Text, Chapter VI Judiciary, Art. 95 (Lux)) have been established as courts of cassation. Compared thereto, the supreme courts of Ireland (Constitution of Ireland: 29 December 1937 (as amended to 29 August 2015), Art. 34 (Ir)) and the US (An Act to Establish the Judicial Courts of the United States: 24 September 1789 (US)) render verdicts on the merits of the case.
34 Within the realm of the Kelsean type of constitutional courts, one can distinguish between the Austrian and the Italian model. The Austrian Constitutional Court can determine that judgments of lower administrative courts have violated the individual’s constitutionally granted rights (Constitution of the Republic of Austria, Main Text, Chapter VIII Constitutional and Administrative Jurisdiction, B. Constitutional Jurisdiction, Art. 144 (Austria)). In this regard, the Constitutional Court functions as a court of cassation and participates at the adjudication of individual cases. In Italy (Constitution of the Italian Republic, Main Text, Title VI Constitutional Guarantees, s I The Constitutional Court, Art. 136 (It)), as well as in Belgium (Constitution of the Kingdom of Belgium, Main Text, Chapter V The Constitutional Court, and the Prevention and Resolution of Conflicts, s 2 The Constitutional Court, Art. 142 (Belg)), and Luxembourg (Constitution of the Grand Duchy of Luxembourg, Main Text, Chapter VI The Judiciary, Art. 95ter (Lux)), cassation and legislative (and normative act) review are separate: while the constitutional courts hold the power to review legislation, their supreme courts scrutinize ordinary courts’ decisions for their consistency with the countries’ laws (Ferreres Comella (2011) 267).
(e) Annulment of Laws
35 It can be inquired if juridical review allows constitutional courts to repeal unconstitutional laws (with an erga omnes effect), or if their opinion on the constitutionality is of no final consequence (Dixon 242). Kelsen has described constitutional courts as ‘negative legislators’ (Stone Sweet (2012) 90) in the sense that ‘judges can tell other branches of government … what not [!] to do’ (Posner 82). As a consequence, Article 140 of the Austrian Constitution (Main Text, Chapter VIII Constitutional and Administrative Jurisdiction, B. Constitutional Jurisdiction, Art. 140 (Austria)) allows the Austrian Constitutional Court to repeal any federal or state law which is considered as incompatible with the federal and/or state constitutions. Given that various constitutions are inflexible and hard to amend (rigid (entrenched) / flexible constitutions), the power to demote legislators allots constitutional courts with considerable influence (Posner 82), especially if legislators are not to be allowed to legislate ‘notwithstanding’ the disputed rights (The Constitution Act: 17 April 1982, Part I The Canadian Charter on Rights and Freedoms, s 33 (Can); Kavanagh 1009). Arguably, Kelsen’s distinction between ‘positive’ and ‘negative’ legislators matches Tushnet’s classification of ‘strong’ and ‘weak’ review, which was developed to distinguish the US judicial review from rights protection in the United Kingdom, Canada, and New Zealand (Kavanagh 1010).
36 In a nutshell, ‘strong’ review is characterized by ‘courts hav[ing] the final and unrevisable word on what the Constitution means, with legislatures and executive officials having no substantial role in informing the courts’ constitutional interpretations’ (Tushnet (2006) 1). Thereby, the concept of ‘strong’ review resonates with Kelsen’s idea of the supremacy of the constitutional law (Kelsen (1959) 108 et seq). Consequently, ‘weak’ review is review without any final stance on the matter. Compared to ‘strong review’, ‘weak review’ does not hold an erga omnes effect (Merryman and Vigoriti 668). While it is obvious that ‘strong review’ can be associated with a constitutional court’s ability to displace legislation, ‘weak review’ presents itself in a manifold of possibilities, ranging from sole interpretation, declaring legislation as unconstitutional (but without enforcing the judgment), to the Canadian ‘notwithstanding clause’ (The Constitution Act: 17 April 1982, Part I The Canadian Charter on Rights and Freedoms, s 33 (Can)): while the Supreme Court might invalidate statutes and grant damages/injunctions, Parliament may simultaneously re-legislate the given provision (Kavanagh 1012)). In this regard, one might hope that legislators respect constitutional norms (Tushnet (2004) 15 et seq) From a systemic point of view, constitutional courts with the power to annul unconstitutional provisions can be regarded as ‘agents of parliament’—an arrangement which continues to be controversially debated against the backdrop of the dogma of the division of power (Stone Sweet (2012) 91 et seq).
2. Protection of Individual Rights
37 Besides constitutional review, the protection and judicial development of human (fundamental) rights has emerged as a far-reaching branch of juridical review. In Europe, one cannot help but pay tribute to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (Spielmann 1231 et seq). In brief, residents of the member states can base claims in front of national courts on the Convention’s rights and—as a matter of last resort—appeal directly to the European Court of Human Rights (ECtHR) in Strasbourg. Logically, the realization thereof demands constitutions which are (at least relatively) open and receptive to the ECtHR’s supranational jurisprudence (Huber and Paulus 281). Article 1 section 2, Article 23 section 1, and Article 24 section 1 of the German Basic Law (Basic Law of the Federal Republic of Germany, Main Text, Chapter I Basic Rights, Art. 1 and Chapter II The Federation and the Länder Arts 23–4 (Ger)) function as so-called ‘hinge provisions’ (Scharniernormen) which allow the incorporation of European and international law into the German legal order (Huber and Paulus 282). Further, Article 59 section 2 (Main Text, Chapter V The Federal President, Art. 59 s 2 (Ger)) provides the European Convention on Human Rights with the rank of a federal law, thus technically subordinated under the Basic Law (as a Kelsean type of basic norm (Kelsen (1959) 170 et seq). Yet the possibility of convictions by the European Court of Human Rights causes a factual supremacy of international human rights (Huber and Paulus 283 et seq). Article 16 section 1 of the Constitution of Portugal (Constitution of the Portuguese Republic: 2 April 1976 (as amended to 10 August 1989) Main Text, Part I: Fundamental Rights and Duties, Art. 16, s 1 (Port)) provides that any internationally established fundamental right shall be enjoyed by the Portuguese people on equal terms (Guerra Martins and Prata Roque 310). At this point, procedural provisions such as the individual complaints procedure have made fundamental rights justiciable (justiciability). As a result, the judicial process is no longer limited to the two-dimensional application of national statutory norms, but the content of national norms must be interpreted in the light of the jurisprudence of the European Court of Human Rights, and the European Court of Justice; judges are required to simultaneously apply statutory, constitutional, and supranational provisions (Garlicki 49 et seq; Bauer 163). This, in turn, allows individuals to substantiate their claims not only with arguments based on national case law, but with reasoning borrowed from the case law of the European Court of Human Rights.
38 The 1998 British Human Rights Act (Human Rights Act (9 November 1998) c42 (UK)) introduced a judicial competence to declare Acts of Parliament as incompatible with the fundamental rights provisioned by the European Convention on Human Rights (Mak 410). The Human Rights Act serves as a remarkable example of development of the law under the influence of international human rights jurisprudence, given that the UK Supreme Court is—outside the Convention’s framework—not entitled to legislative review (Mak 410). Besides procedural amendments, the jurisprudence of the European Court of Justice has also sparked the development of substantive laws (Spielmann 1239). Exemplarily, Article 8’s right to respect for private and family life (European Convention on Human Rights: 4 November 1950 (as amended by the Protocols Nos 11 and 14) s 1 Rights and Freedom, Art. 8) has changed views on immigration and asylum law (see for example: Gül v Switzerland (1996) (ECtHR); Sarközi and Mahran v Austria (2015) (ECtHR)).
39 In its landmark decision in the S v Makwanyane and Another Case (S Afr) (1995), South Africa’s Constitutional Court declared the death penalty as unconstitutional. In the absence of a (supranational) system of justiciable human rights, the judges supported their reasoning with foreign precedents (Rautenbach 357). Through comparable reference to foreign decisions, the Portuguese Constitutional Court has decided upon controversial matters, such as abortion (Guerra Martins and Prata Roque 315 et seq). The recent decision by the Supreme Court of India to annul section 377 of the Penal Code and thus decriminalize homosexuality (Navtej Singh Johar and ors v Union of India (2018) (India)) serves as a similar example of foreign references to underpin judgments with far-reaching social impact.
3. Other Functions of Constitutional Courts
40 Powers other than judicial review can be summarized as ‘ancillary powers’ (Ginsburg and Elkins 1431), such as legislative proposals, verification of states of emergency (types and effects of emergency), impeachment procedures, determining if political parties contradict constitutional standards (ban on political parties), or adjudicating violations at elections (Ginsburg and Elkins 1440 et seq). Additionally, constitutional/supreme courts might oversee a country’s financial conduct, as well as damage claims against the state, such as Article 137 instructs the Austrian Constitutional Court to do (Constitution of the Republic of Austria, Main Text, Chapter VIII Constitutional and Administrative Jurisdiction, B. Constitutional Jurisdiction Art. 137 (Austria)). Based on Article 62 of the Constitution of the Principality of Liechtenstein (Constitution of the Principality of Liechtenstein, Main Text, Chapter V The Diet, Art. 62 (Liech)), government members—but not the Prince himself—can be impeached in front of the State Court for violations of the Constitution, or other laws (Bussjaeger (2016) 25).
41 Taiwanese parties can be challenged in front of the Council of Grand Justices for programmatic outlooks, or activities that threaten the country’s existence (Ginsburg (2015) 52; Constitution of Taiwan, Additional Articles of the Constitution of Taiwan, Art. 5 (Taiwan)). Before the Russian Constitution of 1993 was enacted, President Yelzin had charged the Constitutional Court to draw up legislative proposals for a future Constitutional Court (Luchterhandt 312; Hausmaninger 351). Further, sections 74a–d of the Slovak Constitutional Court Act (Zákon c. 38/1993 Z. z.Zákon Národnej rady Slovenskej republiky o organizácii Ústavného súdu Slovenskej republiky, o konaní pred ním a o postavení jeho sudcov (as amended to 314/2018 Z. z.) ss 74a–d (Slovk)) allow the Constitutional Court of the Slovak Republic (Ústavný súd Slovenskej republiky) to analyse if a declared state of emergency is constitutionally legitimate or illegitimate (Luchterhandt 330). Generally speaking, issues of electoral jurisprudence often arise in a constellation of tension between preventing fraud, but granting individuals’ right to cast their ballots, as well as creating fair conditions for all (legitimate) campaigners (Pildes 535 et seq). In this regard, the Japanese ban on door-to-door campaigning was considered constitutionally justified (Pildes 542 with reference to Taniguchi v Japan (1967) (Japan)). Article 92 of the Senegalese Constitution allows the Constitutional Council to determine the regularities of elections (Constitution of the Republic of Senegal: 22 January 2001 (as amended to 20 March 2016) Main Text, Title VIII: Of the Judicial Power, Art. 92 (Sen)).
F. Judicial Conflicts between Constitutional Courts and Supreme Courts
42 Specialized constitutional courts unfold tension between the new institution and ordinary courts (Merryman and Vigoriti 665). Particularly, the risk of competence collisions becomes an issue of concern (Ferreres Comella (2011) 273). According to Garlicki (Garlicki 50 et seq), the subsequent constellations are of exemplary nature:
43 First, the German rivalry between the constitutional court and the countries’ supreme courts confronts spectators with the question of whether the constitutional court can (or shall) act as a court of cassation for verdicts issued by ordinary last instance courts. After the Second World War, the newly introduced individual complaint procedure (Verfassungsbeschwerde) to challenge ordinary courts’ final decisions (Art 12 of the Statute on the Federal Constitutional Court (12 March 1951) BGBl I, 243 (Ger)) and the supremacy of the constitution produced a constitutionalization of the entire legal system, given that the complaints caused an adjustment of the constitution’s fundamental rights (Garlicki 51). In other words, the fundamental rights were no longer seen as mere programmatic visions, but as justiciable rights which functioned as benchmarks for legislative, administrative, and judiciary acts. While the German Constitutional Court maintains that it must not act as a ‘Superrevisionsgericht’ (re-examination court), the juridical praxis is far-reaching (Garlicki 52). Individuals can demand the Court to re-examine if a juridical assessment of the facts has been arbitrary even though German procedural law is shaped by the principle of free appraisal of evidence (Garlicki 52). The same can be ascertained about the State Court of the Principality of Liechtenstein (Bussjaeger (2012) 872). However, only few complaints are successful and lead to situations in which the German Federal Constitutional Court set aside verdicts as a court of cassation (Basic Law of the Federal Republic of Germany, Main Text, Chapter IX The Judiciary, Art. 93, s 1, para. 4a (Ger)).
44 Secondly, the Italian debate raises the question if interpretations issued by the Corte Costituzionale are binding for the ordinary courts, especially in the light of the honoured principle of independence of the judiciary. Judicial review was introduced by the 1948 Constitution (Constitution of the Italian Republic, Main Text, Title VI Constitutional Guarantees, s I The Constitutional Court, Art. 134 and 136 (It); Merryman and Vigoriti 667). Yet, decisions on the constitutionality are not taken in absolute terms, but in relation to a particular interpretation of the provision at stake for a case pending at ordinary courts. Technically, an ‘interpretive decision’ does not repeal the challenged statute (Garlicki 54). Legal practice indicates that interpretative rulings are only taken into consideration by ordinary courts if they hold them persuasive (Garlicki 55). As a result, the Italian Constitutional Court might enjoy limited authority over ordinary courts (Ferreres Comella (2011) 274).
45 During the late 1990s, a controversy arose between Polish jurists over the question of whether courts subordinate to the Constitutional Tribunal could decide independently upon the unconstitutionality of a given statute, ie if they could decide on their own to not apply said provisions without referring it to the Constitutional Tribunal (Garlicki 57 et seq). The conflict was smoothed over by the ‘living-law’ doctrine: if the Supreme Court and the High Administrative Court had already established a distinct interpretation of a certain provision, the Constitutional Tribunal would refrain from analysing the constitutionality of that provision (Garlicki 60).
46 The French separation of the Conseil Constitutionnel from the entire judiciary by the limiting of the former to preventive review hints at implementation problems. In the absence of procedural mechanisms to implement its rulings and impose its interpretations on the Cour de Cassation and the Conseil d’État, the viability of the Conseil’s legal positions depends on argumentative persuasiveness and the voluntary compliance of other jurisdictions (Garlicki 62; Tomuschat 257).
47 In summary, a functionalist perspective helps bridge the gap between common law and civil law legal traditions and focus on the issue at stake, namely last instance courts and their ability to perform ‘constitutional review’. Furthermore, the distinction between the Kelsean centralized model of a specialized Constitutional Court, and the American model of decentralized review serves as a guideline for cross-national examination. In this regard, federalism adds yet another layer of analysation, exemplarily by varied court structures, overlapping jurisdictions, or constitutional review of questions associated with the federal (ie vertical-territorial) division of power. If it comes to understanding how last instance review is issued, it might be useful observe if review is performed abstractly or incidentally, a priori or a posteriori, if the courts set aside previous verdicts or decide upon the merits of the case, and if they can annul statutory law or merely interpret it. Trends, such as the judicialization of constitutions and the constitutionalization of legal orders (Garlicki 65) suggest that constitutional review is well advised to be conducted in a dialogue-orientated manner rather than by inflaming open conflicts (Garlicki 68)—especially in times of growing scepticism vis-à-vis representative democracy.
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