Control of Constitutionality – II
A comparative analysis of civil and common law jurisdictions
Mohammad Akram Sheikh
Tuesday, November 09, 2010
The control of the constitutionality of public actions is usually shared by the Supreme Court with subordinate courts like the high courts, and in such cases the Supreme Court acts as an appellate forum. US, India and Pakistan are examples of such a system.
In addition to the diversity of adjudication bodies, there is also a fundamental difference in the way decisions are issued by constitutional courts in civil law and common law countries. A decision by courts in civil law countries is issued impersonally by the court as a whole and it is not possible to determine how an individual judge voted. Therefore, it is not clear whether the decision has been adopted unanimously or by a majority of votes. In common law countries, individual judges make their personal contributions and it is possible to determine how an individual judge voted. One can, therefore, easily determine if the decision was made by a specific majority or adopted unanimously. The judges who do not agree with the majority add their interpretation of the decision in either in the form of a concurring opinion, when a judge agrees with the ruling but differs as to its reasoning, or a dissenting opinion, when a judge objects to the ruling itself. Reliance can consequently be made on the reasoning provided in the judgment itself rather than depending on third party interpretation by scholars as is done in civil law jurisdictions.
The concerned organs of state exercise control of constitutionality through either judicial or political means:
- Judicial control of constitutionality. A court is empowered to review the constitutionality of the country’s laws and to declare them unconstitutional if found against the provisions of the constitution. For example, the pronouncements of the Supreme Court of United States on questions of constitutionality are final and binding for all other courts and federal and state government authorities. Different systems are used in the judicial control of constitutionality:
- a) Centralized and Concentrated System. In a centralized and concentrated system, control of constitutionality vests centrally in one organ. Accordingly, the power of judicial review is given to a separate and special body called Constitutional Court, Council or Tribunal, which is established for this specific purpose and is completely different from ordinary courts. The civil law jurisdictions are the proponents of this system where only the constitutional court has the power to review the constitutionality of legislation. An example of the centralized system is France, where matters regarding the constitutionality of laws are concentrated in the French Constitutional Council. X The centralized model is often promoted on the basis that it guarantees crucial expert knowledge (often found lacking in ordinary courts), which is generally needed to understand the intricacies of constitutional law. Consequently, the advocates of this system suggest that it probably makes judicial settlement of constitutional issues easier and quicker than the decentralized or diffused system.
- b) Decentralized and Diffused System. In a decentralized and diffused system, the control functions are spread out among various organs. Thus, a decentralized and diffused system is a judicial system in which every court is competent to judge the conformity or non-conformity of a legal provision with the constitution. The United States is a prime example of a decentralized system where power of judicial review lies with other courts in addition to the United States Supreme Court.
- c) Mixed System. Mixed system is a judicial system which is a combination of the concentrated and diffused systems.
- Political control of constitutionality. In political control of constitutionality the power to review the constitutionality of a country’s law does not rest with the court. In some systems with a legacy of parliamentary control of constitutionality, the decision of the constitutional court as to unconstitutionality is advisory and not binding on the legislature. The legislature retains some power to reject or accept the court’s finding, either by majority or supermajority vote. For example, in Mongolia, the legislature can reject an initial finding by a panel of the constitutional court. However, the court can afterwards rehear the case with its full membership and uphold its initial decision with a 2/3 vote.
The nature of control of constitutionality may either be abstract or concrete: (i) in abstract control, when control is exercised it is not a question of actual case at hand, but the control is hypothetical to its character in the sense that the norm itself is seen to contravene the constitution; and (ii) in concrete control, when control is exercised it is in relation to an actual case at hand, and the control is considered concrete because it directly influences the case at hand-either beneficially or detrimentally affecting the parties thereto. While the former form of control is more prevalent in civil law jurisdictions, the latter form of control is more common in common law countries. xi The concrete control is generally considered to be better insofar as such control provides a better guarantee, especially regarding fundamental rights, for concerned parties because of their vested interest in the outcome of the case.