A comparative analysis of civil and common law jurisdictions – II

The News International
Wednesday, November 10, 2010

Organisation and Basis of Control

As noted earlier, specialized institutions or bodies have been established in some countries to exercise judicial or political control of constitutionality. These are:

  1. Constitutional Court. A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether or not laws that are challenged are in fact unconstitutional. Examples of such courts can be found in Albania, Armenia, Austria, etc.
  2. Constitutional Council. The Constitutional Council (Conseil Constitutionnel) is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld. Other countries which have a Constitutional Council are Algeria, Burkina-Faso, Cambodia, Lebanon, Mauritania, and the United Kingdom.
  3. Constitutional Tribunal. The Constitutional Tribunal is a judicial body established to resolve disputes on the constitutionality of the activities of state institutions; its main task is to supervise the compliance of statutory law with the Constitution. The countries with a Constitutional Tribunal are Chile, Peru, Andorra, Bolivia, and Portugal.

The basis of control of constitutionality is either rule-based or doctrine-based. In most countries, the controlling organs are specifically empowered by their constitutions to perform the function of constitutional review. This is a rule-based power. In some countries, the power is exercised pursuant to a doctrine established by judicial precedent. For example, in the United States, the power of judicial review is not expressly given in the United States Constitution but is derived from the judicial doctrine propounded by Chief Justice John Marshall of the United States Supreme Court in Marbury v. Madison. It is, therefore, known as the doctrine-based power.

Comparison of Constitutional Review Process

Civil law and common law systems have different underlying philosophies about the constitutional review. Modern civil law is based on the Napoleonic Code under which legislative supremacy (or parliamentary sovereignty) was one of the basic features of the constitutional setup. Underlying legislative supremacy is the idea that the legislative body should be superior (and consequently more powerful) than other branches of government. This is justified by the idea that the legislative body actually represents the people since it is directly elected by the people, (whereas members of other branches of government might not necessarily be elected at all). Because of such a sentiment, in legal systems stressing legislative supremacy, the judicial body is usually strictly prohibited from making any law. Moreover, it is not granted any powers to challenge laws made by the legislative branch and thus has no judicial review power. Consistent with this, the Napoleonic Code did not admit any “notion” of judicial review. This is in stark contrast to many common law systems where the making of laws from the bench is commonly accepted, and where judicial review is seen as a necessary check on the power of the legislature.

This idea is based on the political theory of separation of powers. In contrast to legislative supremacy, the idea of the separation of powers was espoused by the United States Supreme Court in its historic judgment in Marbury v. Madison in 1803. The separation of powers is based on the idea that no branch of government should be more powerful than any other, and that each separate branch of government should have certain checks on the powers of the other branches of government; thus creating a balance of power among all the branches of government. Key to this is the idea of checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary.

Thus overall, differences in organizing “democratic” societies have led to different views regarding judicial review; with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review. Nevertheless, many countries where legal systems are based on the idea of legislative supremacy have since learned the possible dangers and limitations of putting so much power exclusively in the legislative branch of government.