INTRODUCTION TO THE

LEGAL SYSTEM – MODULE 2

CONSTITUTIONAL JUSTICE

Justin Frosini
LIST OF CONTENTS

1. Introduction
2. Historical Perspective
3. Essential Components of
Constitutional Review
4. Models of Constitutional Justice
5. Other Functions of
Constitutional Courts
 PREMISE
i. Why does a Legal System need a
Supreme/Constitutional Court?

ii. Definition of Constitutional Justice,

Constitutional Adjudication or Constitutional
Review

iii. How constitutional judges are selected

 WHY DOES A LEGAL SYSTEM NEED A
SUPREME/CONSTITUTIONAL COURT?
1. To ensure certainty and equality

2. To ensure the Rule of Law

3. To resolve conflicts between central

and decentralized government
DEFINITION OF CONSTITUTIONAL
REVIEW:

When a jurisdictional body

compares the Constitution (rigid and
codified) with legal sources which are
subordinate to the Constitution
and -
in case of contrast - declares them
unconstitutional
HOW CONSTITUTIONAL JUDGES
ARE SELECTED

1. Appointment based system

2. Election based system
3. Mixed system
4. Predetermined system
1. APPOINTMENT BASED SYSTEMS

Judges are nominated

(appointed) with limited
intervention of the
legislative body
(Parliament)
EG.: UNITED STATES (SUPREME COURT)

With the advice

and consent of
the Senate…
… the President appoints the Supreme
Court judges.
In appointing each judge the President has to
follow certain criteria that has the aim of
safeguarding non discrimination. The
President has to consider: geographical
origin, gender, religion, race. Candidates’
political orientation is not taken into
consideration. Is that reality of things?!
 2. ELECTION BASED SYSTEM

Parliaments exert greater influence

upon the election of constitutional
judges in comparison with the
election of judges of regular courts
EG.: GERMANY

Judges are exclusively elected by the

legislative body (parliament)
 3. MIXED SYSTEM
 Some of the judges are elected by the legislative body

 Some of the judges are appointed by non-legislative bodies

(e.g. Austria, Italy, Spain)

The delay in setting up the Italian Constitutional Court was due, inter
alia, to issues related to the apppointment of the judges
 4. PREDETERMINED COMPOSITION

Neither Parliament nor the Government

are directly involved in the appointment
of constitutional judges
(e.g. Greece)
Our Greek students will explain how the
system works in more detail!
 HISTORICAL PERSPECTIVE

1. Bonham’s Case
2. Marbury v. Madison
3. French contradiction
4. Hans Kelsen
-BONHAM’S CASE, 1610-.

“...it appears in our books, that in

many cases, the common law will
controul Acts of Parliament, and
sometimes adjudge them to be
utterly void: 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.” Lord Edward Coke,
1552 - 1634
 WHAT IS NEW?
The supremacy of the common law in
England

The prerogatives of Parliament were

derived from and circumscribed by
precedent.
-MARBURY V. MADISON, 1803-
“…in declaring in what shall be
the supreme law of the land, Madison
the constitution itself is first
mentioned; and not the laws
of the United States generally
but those only which shall be
made in pursuance of the
Constitution, have that rank.”
Marbury
“…the particular
phraseology of the
constitution of the
United States confirms
and strengthens the
principle, suppose to
be essential to all
written constitutions
that a law repugnant
to the constitution is
void;” Judge John Marshall
WHAT IS NEW?

 Judicial review, even though the idea of a judicial

review of legislation was already part of the thirteen
colonies’ juridical culture.

 The competence of all Courts (in this case of the

Supreme Court) to verify if a law is in pursuance, or not, of
the Constitution.

 If a law is judged to be unconstitutional the judge must

eliminate it from the legal system.
 Montesquieu

THE FRENCH
CONTRADICTION
Rousseau

Judge is the bouche de la loi

therefore The Constitution
It would be unconceivable to VS safeguards the doctrine
give judges the power to of separation of
strike down legislation powers
 HANS KELSEN
Hans Kelsen

WER SOLL DER HÜTER

DER VERFASSUNG
SEIN?
WHAT IS NEW?
 The Constitution is the law of laws in a
legal system conceived as a Stufenbau
 Guardian of the Constitution should be a
“Court-like” body
 Review should not be a priori
(preventative) but a posteriori (repressive)
 If a law is in contrast with the
Constitution the Court should strike it
down
 Complaints should only be lodged by
constitutional bodies
 ESSENTIAL COMPONENTS OF
CONSTITUTIONAL REVIEW
1. WHO CARRIES OUT CONSTITUTIONAL
REVIEW?
2. WHEN IS REVIEW CARRIED OUT?
3. HOW CAN ONE LODGE A CONSTITUTIONAL
CLAIM?
4. WHAT TYPES OF DECISION?
5. WITH WHAT EFFECTS?
 1. WHO CARRIES OUT
CONSTITUTIONAL REVIEW?

i. Centralized review
ii. Decentralized review
 I. CENTRALIZED REVIEW

Constitutional review
is carried out exclusively
by an ad hoc Court-like body
 II. DECENTRALIZED REVIEW

Constitutional review
is carried out
by anyjudge during
regular court
proceedings
 2. WHEN IS REVIEW CARRIED OUT?

i. Preventative review (a priori)

ii. Repressive review (a posteriori)
 i. Preventative (a priori)

Judicial Review is carried out before

the law has come into effect
Eg.: France - with reference to statute
laws.
Italy - with reference to regional
laws before 2001 amendment
 ii. Repressive (a posteriori)

JUDICIAL REVIEW IS CARRIED OUT

AFTER THE LAW HAS COME INTO EFFECT

EG.: ITALY
 3. HOW CANONE LODGE A
CONSTITUTIONAL CLAIM?

i. Principaliter (Abstract/Specific)
ii. Incidenter (Specific)
 I. PRINCIPALITER

It may be lodged
independently of the
proceedings in a specific case
 Principaliter review can be
introduced by:

 INSTITUTIONS (Institutional petition)

(abstract)

 INDIVIDUALS (Individual petition)

(specific)
INDIVIDUAL PETITION
Individuals (or a group of individuals)
can ask for judicial review directly to a
Constitutional Court
when
a statute or an administrative act
violates
one of their Constitutional Rights
II. INCIDENTER (SPECIFIC)

Judicial review
is carried out
during a regular proceeding
before a regular Court
4. WHAT TYPES OF DECISION?

a. CASSATION DECISION

b. DECLARATORY DECISION

c. APPELLATE DECISION

d. INTERPRETATIVE DECISION
A. CASSATION

1. ANNULMENT 2. ABROGATION

Ab initio Prospectively
B. DECLARATORY DECISION

It may also be of a
preventative character
3. APPELLATE DECISIONS

The Constitutional Court appeals

to the Legislature (explicitly or
implicitly, with or without time
limit) to adopt certain provisions
4. INTERPRETATIVE

The Constitutional Court secures

with its own interpretation that in
the future the implementation of
the statute complies with the
Constitution
5. WHAT ARE THE EFFECTS?
 SUBJECTIVE EFFECT

 TEMPORAL EFFECT

Note that effects may change depending on whether the

law is declared unconstitutional or not
 SUBJECTIVE EFFECT

1. ERGA OMNES 2. INTER PARTES

The decision The decision
is generally binds the
binding parties of the
controversy
 TEMPORAL EFFECT

EX TUNC EX NUNC

From the moment a disputed From the moment the decision

provision took effect on uncostitutionality was
taken
MODELS OF CONSTITUTIONAL REVIEW
1. The American model of Constitutional
review
2. The Austrian model of Constitutional
review
3. The Hybrid model of Constitutional
review
1. THE AMERICAN MODEL
Judicial Review is carried out:
 by all regular Courts
DECENTRALIZED REVIEW
 under the regular Court
proceedings
INCIDENTER
 after the law has come into effect
A POSTERIORI
2. THE AUSTRIAN MODEL
Constitutional matters are dealt with:
 by the specialized ad hoc Constitutional Court

CENTRALIZED REVIEW
 special proceedings

PRINCIPALITER
 before and after the law has come into effect

A PRIORI/A POSTERIORI
 3. THE HYBRID MODEL (TERTIUM
GENUS)
Constitutional matters are dealt with:
 by the specialized ad hoc Constitutional Court

CENTRALIZED REVIEW
 special proceedings or under the regular Court
proceedings
PRINCIPALITER or INCIDENTER
 before and after the law has come into effect

A PRIORI/A POSTERIORI
 OTHER FUNCTIONS OF
CONSTITUTIONAL/
SUPREME COURT
1. JURISDICTIONAL DISPUTES
between:

 Branches of Government
 State and regional or local entities
 Local or regional entities
 Courts and other government bodies
 2. POLITICAL PARTIES
 Constitutional Courts are given the
power to declare a political party
unconstitutional because of its
manifesto or its activities.

3. REFERENDUM
 Decision-making regarding the
admissibility of the referendum
 4. ELECTIONS
 Decision-making regarding the
conformity of proceedings with the
Constitution and Statute Law

5. CONFIRMATION OF ELECTED
MEMBERS
 6. CAPACITY FOR OFFICE
 President of the Republic
 Other State representatives

7. IMPEACHMENT
 President of the State
 Other State representatives