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Control of Constitutionality – V

A comparative analysis of civil and common law jurisdictions

Mohammad Akram Sheikh
Friday, November 12, 2010

Following is the continuation of the article published on Nov 11, 2010, issue of The News.


ii See, e.g., Alec Stone Sweet, “Why Europe Rejected American Judicial Review and why it may not Matter,” JSTOR: Michigan Law Review, Vol. 101, No. 8 (Aug., 2003), pp. 2744-2780; Alessandro Pizzorusso, Vincenzo Vigoriti, G. L. Certoma, “The Constitutional Review of Legislation in Italy,” 56 Temp. L. Q. 503(1983); Burt Neuborne, “Judicial Review and Separation of Powers in France and the United States,” 57 N.Y.U. L. Rev. 363 (1982); Cvetan Cvetkovski, “The Constitutional-Judicial Control of the Legislative and Executive Powers in Central and Eastern Europe Countries,” Open Society Institute, (March 1999); Hans G. Rupp, “Judicial Review in the Federal Republic of Germany,” JSTOR: The American Journal of Comparative Law, Vol. 9, No. 1 (Winter, 1960), pp. 29-47; Harold H. Bruff, “Specialized Courts in Administrative Law,” 43 Admin. L. Rev. 329 (1991); James Beardsly, “Constitutional Review in France,” Ct. Rev. 189 (September 1975); Joakim Nergelius, Pasquale Policastro, Kenji Urata, “The Material Control of Constitutionality of Statutes,” XXI IVR International Conference (December 2003); Leszek Garlicki, “Constitutional and Administrative Courts as Custodians of the State Constitutions-The Experience of East European Countries,” 61 Tul. L. Rev. 1285 (1986-1987); Louis L. Jaffe, “Standing to Secure Judicial Review: Public Actions,” 74 Harv. L. Rev. 1265 (1960-1961); Mark F. Brzezinski, “The Emergence of Judicial Review in Eastern Europe: The Case of Poland,” JSTOR: The American Journal of Comparative Law, Vol. 41, No. 2 (Spring, 1993), pp. 153-200; Mark F. Brzezinski, Leszek Garlicki, “Judicial Review in Post-Communist Poland: The Emergence of Rechtsstaat?,” 31 Stan. J. Int’l L. 13 (1995); Mr Jacques Ziller, “Administrative Justice as an Aspect of Modern Governance,” European Commission for Democracy Through Law, (March 2005); Rafael La Porta, Florencio Lopez-de-Silanes, Christian Pop-Eleches, Andrei Shleifer, “Judicial Checks and Balances,” National Bureau of Economic Research working paper no. 9775, (June 2003): 16; Rhett Ludwikowski, “Judicial Review in the Socialist Legal System: Current Development,” Cambridge University Press, (January 1988), 37:89-108; Shaprio, Martin, “The Institutionalization of European Administrative Space,” Center for Culture, Organizations and Politics, Institute for Research on law on Labor and Employments, (October 2004); and Tom Ginsburg, “Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan,” Law and Social Inquiry, 27:763-799.


iii See, e.g., Pakuscher, E.K. “Administrative Law in Germany-Citizen v. State”, 16 The American Journal of Comparative Law, 309 (No. 3) (Summer 1968); Gentili, G. “Concrete Control of Constitutionality in Italy”, in Comparing Constitutional Adjudication-A Summer School on Comparative Interpretation of European Constitutional Jurisprudence (3rd Edition – 2008); Husa, J. “Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective”, 48 The American Journal of Comparative Law, 345, (No. 3) Summer, 2000; Crossland, H.G. “Rights of the Individual to Challenge Administrative Action before Administrative Courts in France and Germany”, 24 The International and Comparative Law Quarterly, 707 (No. 4) Oct., 1975; Saario, V. “Control of the Constitutionality of Laws in Finland”, 12 The American Journal of Comparative Law, 194 (No. 2) Spring, 1963; and Garner J.W. “French Administrative Law”, 33 The Yale Law Journal, 597 (No. 6) Apr. 1924.


iV See, e.g., G. Harutyunyan, A. Mavcic, “The Constitutional Review and its Development in the Modern World (A Comparative Constitutional Analysis),” Yerevan-Ljubljana, (1999):445; Guy E. Carmi, “A Constitutional Court in the Absence of a Formal Constitution? On the Ramifications of Appointing the Israeli Supreme Court as the only Tribunal for Judicial Review,” Connecticut Journal of Int’l Law, 21:67 (2005); Jacques Ziller, “The Value of Justice in the European Constitution,” European University Institute, no. 8 (2006); Mauro Cappelletti, “Judicial Review in Comparative Perspective,” California Law Review 58, no. 5 (October 1970):1017; Sarah Wright Sheive, “Central and Eastern Europe Constitutional Courts and the Anti-Majoritarian Objection to Judicial Review,” Law and Policy in International Business, (June 1995); Thomas Fleiner, “Common Law and Continental Law: Two Legal Systems,” Institute of Federalism, (April 2005); and Tom Ginsburg, “Comparative Constitutional Review,” University of Chicago Law School, (September 2008).


V A recent example of this is the invalidation of the National Reconciliation Ordinance by the Supreme Court of Pakistan.


Vi It should be noted that in France the courts do not have power to control the constitutionality of laws and the Constitutional Council can act only before the Act has come into force. The Council is in a very important position in French constitutional law because it gives authoritative opinions of what is constitutional and what is not. John Bell, FRENCH CONSTITUTIONAL LAW 77 (1992).


Vii A case challenging the 18th Amendment to the Constitution of Pakistan, 1973 has been filed by the author praying for invalidation of the new mode of appointment of judges prescribed therein on the basis that it is inconsistent with the principle of independence of judges guaranteed by the Constitution. The case is presently pending in the Supreme Court of Pakistan.


Viii For an extensive survey see Chap. IV, G. Harutyunyan & A. Mavcic, THE CONSTITUTIONAL REVIEW AND ITS DEVELOPMENT IN THE MODERN WORLD (A COMPARATIVE CONSTITUTIONAL ANALYSIS) (Yerevan – Ljubljana, 1999).


Ix This function is performed by the Federal Constitutional Court in Germany and Constitutional Council in France. In Germany, the constitutional questions concerning the validity of statutory law reach the court chiefly through references by the ordinary courts engaged in deciding cases or through appeals by the losing parties of ordinary courts’ decisions depriving them of their constitutional rights. But sometimes the questions can be raised also by such political agencies as the national executive and the regional governments or by a parliamentary minority. These can challenge the law before the constitutional court without having to sue in an ordinary court.


X Other examples are: Austria, Germany, and Italy where the Constitutional Court (Corte costituzionale) controls the constitutionality of laws and is the only court which can invalidate the Acts of parliament. If an ordinary court raises a question of constitutionality of the Act of parliament, it is required to submit the question to the Constitutional Court.


Xi In the US system of judicial review, constitutional questions can be raised only in connection with actual “cases and controversies.” Advisory opinions to the government are not rendered by the courts. Although the requirements to litigate cases have been relaxed by the Supreme Court, the rule still is that courts will not decide a constitutional question unless it is rooted in a controversy in which the parties have a direct, personal interest; this can sometimes frustrate efforts to obtain pronouncements on disputed issues.


Xii http://en.wikipedia.org/wiki/Judicial_review.


Xiii See, G. Harutyunyan & A. Mavcic, THE CONSTITUTIONAL REVIEW AND ITS DEVELOPMENT IN THE MODERN WORLD (A COMPARATIVE CONSTITUTIONAL ANALYSIS) (Yerevan – Ljubljana, 1999).


Xiv Thomas Fleiner, COMMON LAW AND CONTINENTAL LAW: TWO LEGAL SYSTEMS (Fribourg, 2005).


—Concluded