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Control of Constitutionality – I

A comparative analysis of civil and common law jurisdictions

Mohammad Akram Sheikh
Monday, November 08, 2010

I wish, at the outset, to thank the International Association of Lawyers for giving me this opportunity to speak on the subject of constitutional review-an area in which I have had immense pleasure in assisting the superior courts in Pakistan in most of the leading cases in the country to date. Being interested in this area of law practice, I have come here to learn more about control of constitutionality by administrative courts in civil law jurisdictions and to compare the corresponding judicial developments in respect thereof in common law jurisdictions.

According to my understanding, control of constitutionality by administrative courts is an intrinsic part of administrative justice, which is very rightly considered to be an aspect of modern governance and a major component of the rule of law. i Administrative justice has two basic features: (i) review of the exercise of legislative powers; and (ii) review of the exercise of executive functions, by administrative courts in civil law countries and judicial courts in common law countries. I will only deal with the former feature in my present discourse.

Analysis of the exercise of legislative powers is done by administrative or judicial courts through a process of “constitutional review”, which seeks to control the constitutionality of legislative actions. There is ample literature on the subject of constitutional review generally. ii And, even though a lot has been written about the control of constitutionality by administrative courts in civil law jurisdictions specifically, iii there is relatively much less done by way of comparative analysis between civil and common law jurisdictions. Iv Constitutional review basically suggests that legislative and executive actions are subject to review by the courts, which can invalidate these actions if found incompatible with the terms of the country’s constitution. The scope of the courts’ authority to review the legislative and executive acts depends on the powers granted to it by the constitution or assumed there under by virtue of judicial precedent (especially in case of common law countries). Consequently, the scope and process of constitutional review differs from country to country. The differing interpretation and application of this norm by courts in various jurisdictions has led to the disparate development of this principle in different countries-not merely based on the differences between civil and common law traditions but within the same legal system as well.

Nonetheless, the control of constitutionality is now undoubtedly a universal phenomenon. I believe that even though the concept has developed according to different organizational structures and diverse substantive and procedural norms in civil and common law jurisdictions, it serves a common purpose in both these systems. It seeks to provide the necessary checks and balances necessary to sustain the concept of separation of powers prevalent in the modern political setup.

The purpose of this discourse is to synthesize the development of this legal norm internationally and to provide a comparative perspective of its application in civil law and common law jurisdictions. In order to provide a coherent analytical framework for our discussion, I propose to deal with the five basic elements of this norm: the timing of the review, the controlling organs of state, the nature of control, the type of control, and last but not least the basis of control. But first, let us understand what is basically meant by the terms “constitutionality” and “control of constitutionality”.

 

Constitutionality and Control of Constitutionality

“Constitutionality” pertains to the quality or state of being constitutional, i.e. in accordance with the provisions of a constitution. Each law is presumed to be constitutional unless or until it is struck down in whole or in part. However, it has long been held that an unconstitutional law is void from its inception, not only after being declared so, and that no person is bound by it and no court or other agency is bound to enforce it.

V In many countries, especially those with written constitutions, mechanisms have been devised to control the constitutionality of laws enacted by the legislative organs of the state as well as the public actions carried out by the executive organs of the state. These mechanisms are mostly implemented by the superior courts of the state through a process of constitutional review. Constitutional review is the power of a court to review the laws of a country for the purpose of examining the constitutionality thereof and declaring it unconstitutional if found against the provisions of the constitution. Thus, “constitutional review” is the name of a process and “constitutionality” is the purpose for which this process is utilized. It is also called “judicial review” in many countries, especially common law countries.

The rationale behind constitutional or judicial review is to establish the supremacy of the constitution by allowing courts to strike down such laws and actions which are unconstitutional, thus ensuring that subordinate laws and public actions of the state conform to the provisions of the constitution.

 

Nature and Scope of Constitutional Review

The constitutional review powers are different in different jurisdictions and can be classified into the following two categories: (i) A priori (preventive) review; (ii) A posteriori (remedial) review.

A Priori Review: In a priori review of constitutional provisions, the court has a consultative function, whereby on the demand of the concerned legislative or administrative body, it examines the proposed statute, rule or regulation and gives its opinion as to whether such statute, rule or regulation is in conformity with the constitution prior to its promulgation or application. Preventive control seeks to point out a possible contradiction to the constitution in advance during the legislative process before the law has come into force and is intended to prevent laws inconsistent with the constitution to take effect. This review process is not used widely and is prevalent mostly in civil law countries. The task is entrusted to specialized bodies, such as the Constitutional Council in France, whose task is to review the final drafts of proposed legislations in order to ensure compliance with the constitution before the legislation is passed by the legislature. vi Finland is another good example where the emphasis lies on preemptive control of constitutionality before the law is passed by the legislature, thus reducing the scope for subsequent judicial review by the courts.

A Posteriori Review: A posteriori review is common in both civil law and common law countries and is conducted after a legislative or administrative action has been taken. The control of constitutionality is thus carried out only after the legislation has come into force. This ex post facto control is generally justified on the basis that it is not possible to remove a priori all conceivable conflicting situations and the fact that a priori review is generally conducted by non-judicial organs of state. Advocates of a posteriori review try to justify it on the basis that it is always conducted by courts and suggest that court control is justified and should be preferred because of the universally applicable principle of judicial independence.

The scope of constitutional review may include the interpretation of one or more of the following legal instruments: constitutional amendments, vii international treaties and agreements, statutes, rules, regulations, parliamentary resolutions, and acts of the head of state. Besides this interpretative function, courts may also review the implementation of laws and sometimes even seek to fill in legal gaps and initiate legislation in conformity with the constitution of the country. They are also the ultimate arbiters of jurisdictional disputes between various state actors and the guardians of social and political norms in the country. They may ensure protection of human rights and take stock of the political process, including conduct of political parties, elections, referenda, capacity of public representatives to hold office, and impeachment etc.

 

Controlling Organs and Nature of Control

The organizational structure of administrative and judicial institutions empowered to review the constitution varies not only between civil and common law countries but within each of these jurisdictions as well. viii The decision making levels in these institutions are also different.

In some jurisdictions the powers of constitutional review are concentrated in the apex institution (e.g. the Supreme Judicial or Specialized Administrative Court) and in others it is diffused among various levels (e.g. the High Courts or special administrative tribunals).

In some cases, mostly in civil law jurisdictions, specialized ‘Constitutional Courts’ have been established to specifically look into the constitutionality of primary laws while issues pertaining to the constitutionality and legality of public actions and directions are usually considered by the specialized ‘Administrative Courts’. Accordingly, the function of judicial review or constitutionality is performed by the Constitutional Court, Council or Tribunal in such countries. France and Germany stand out as prime examples of such a system.

Ix In other cases, mostly in common law jurisdictions, the control of constitutionality is given to a ‘Supreme Court’ which has a general jurisdiction to adjudicate upon civil, criminal and administrative appeals as well as to entertain constitutional questions. The judicial review function is performed by the Supreme Court, which is considered the guardian of the constitution.

Continued…