ASSIGNMENT

OF
Comparative Public Law
LLM 1ST SEM.
SUBMITTED TO: SUBMITTED BY:
Dr. Divya Khurana Shashank Yadav
The Concept of CONSTITUTIONAL REVIEW
 Abstract
The various forms for assessing and reviewing the constitutionality of the actions and decisions of
governments, parliaments, and other authorities, collectively referred to as constitutional review. It
highlights that constitutions often put in place provisions to this end on whom should be entrusted with
the responsibility of interpreting and enforcing the constitution, and how this responsibility should be
allocated. The chapter provides an overview of the different forms and models of constitutional review,
and offers several considerations for striking the right balance among different values, including the
protection of democracy, upholding the rule of law and the superiority of the constitution, but also the
insulation of the courts from political influences, the protection of minorities’ representation and
individual human rights.
 Key Issues
Countries can suggest and help inform several considerations for the design of a system of judicial
constitutional review, especially one that involves the operation of a constitutional court. Establishing a
model of constitutional review often involves balancing different values: democracy, majoritarian rule,
upholding the rule of law and the supremacy of the constitution, protection of minorities’ representation,
and individual human rights – as well as affirming the constitutional court’s independence from political
parties while preventing excessive judicial activism through self-restraint. Constitutional courts’ design
involves political trade-offs among these values. Key issues and options may include:
Limiting and clearly demarcating the powers of constitutional courts, in the constitution or in subsequent
constitutional legislation, may facilitate a balance among conflicting values and reduce institutional
disagreements in the future between constitutional and ordinary courts.
Three essential tenets for constitutional courts design include partisan independence, a balanced
composition and self-restraint. Constitutional courts tend to acquire legitimacy if they contribute to
democracy and human rights protection, are perceived as politically independent, and practice a
moderate activism or self-restraint, even if certain constitutional courts have been quite active in policy
making (e.g. Colombia). Due consideration of the form of judicial review (mild, strong, or a mixed
system) is also key.
 Core features of the main models and forms of constitutional review
A number of historical and institutional factors have influenced the design of constitutional review, including but
not limited to decentralisation structure, institutional legacy, type of legal family, the degree of political
fragmentation, authoritarian past, cross-fertilisation across countries, and undisrupted parliamentary
sovereignty (Castillo‐Ortiz, 2020). A first categorisation should be put forward between mild (weak) and intense
(strong) court intervention.
 Forms of review: Mild and intense forms of judicial constitutional review
Looking at this dichotomy among countries, variations occur from Finland, New Zealand, Australia and
Switzerland, where the judicial intervention is comparatively mild, to Austria, Colombia, Germany and Spain,
where it can be rather intense. France, Mexico and Portugal are countries in between, with varied forms of
intensity. Thus there is a clear continuum of approaches to address this tension through different forms of
judicial review in countries.
With both mild- and weak-form judicial reviews, judges' rulings on constitutional questions are expressly open to
legislative revision in the short run. Courts are first given the opportunity to explain why in their reading a
challenged statute is unconstitutional. Having done so, they then step aside and let the legislature respond. The
legislative deliberations are thus informed, but not bound, by the courts’ arguments. In the end, if a majority of
legislators disagree with the courts’ constitutional interpretation, a mild-form review allows them to adopt their
own vision (Mailey, 2018) (Tushnet, 2006). Nonetheless, in most cases, mild review enables the courts to
invalidate legislation when it is patently inconsistent (or as the Finnish and Swedish Constitutions put it, “in
evident conflict”) with any reasonable interpretation of constitutional language. In terms of scope and timing,
mild-form review could be employed for varying parts of a constitutional regime and tailored to the political
situation. For example, it could apply to rights provisions (the dogmatic part of the constitution) and not to the
structural components (the organic part of the constitution), such as federalism or separation of powers, or to
certain rights but not others. It could apply to legislative action only but not executive, or include a legislative
override of judicial decisions on executive power but not an executive override of judicial decisions.
 Models of constitutionality assessment: Parliamentary, Kelsenian and Diffuse
Three broad models of constitutionality assessment may be identified that much depend on the political
and constitutional history of each country. These three models hinge on the locus of the review
(parliament or courts). While these categories are largely grounded in legal theory and regulations, and
may not have a strong bearing on the different outcomes and effectiveness of constitutional review in
practice, they can frame the discussion around the main options to establish constitutional review:
parliamentary sovereignty model
European continental (or Kelsenian-Austrian) concentrated and abstract model
diffuse or dispersed judicial review model.
 Parliamentary sovereignty model with limited or mild judicial review
In these models, judicial review of constitutionality is either forbidden (art. 120 of the constitution of the
Netherlands) or limited (Finland, Sweden, New Zealand, Canada, the United Kingdom and Switzerland). In
both Finland and Sweden there is an article in the constitution that allows courts to perform constitutional
judicial review and to disapply a provision that is seen to be in evident conflict with the constitution (in
Finland, the Perustuslaki [Finnish Constitution], art. 106; in Sweden the Regeringsform [Swedish
Constitution], art. 14, chapter 11). At present only one decision can be found where Article 106 has been
applied by the Finnish Supreme Court with an outcome that left a provision of a law
unapplied. Importantly, the power to control constitutionality in Finland is still mainly concentrated in the
Constitutional Law Committee of Parliament (Perustuslakivaliokunta) (Hautamäki, 2006).
In some countries under this model, the legislature may stand on equal or even superior footing to the
courts, as demonstrated by the “new Commonwealth model of constitutionalism” (Gardbaum,
2013) found in Canada, the United Kingdom and New Zealand. According to this model, supreme
authority over all matters in the legislature is vested in parliamentary sovereignty – including the
articulation and enforcement of constitutional norms, as well as responsibility for implementing
constitutional values.
 Ancillary powers
Some constitutional courts have expanded ancillary powers in different yet important areas such as
verifying elections and regulating political parties (illegalising them or auditing their accounts), as in
Colombia, Germany, Portugal and Turkey. Besides the core task of constitutional review of legislation and
administrative action, constitutional courts have been granted other powers, including such duties as
proposing legislation (Colombia); certifying states of emergency; impeaching senior governmental
officials; adjudicating election violations (France); and auditing political party financing (Portugal and
Turkey). However, caution is needed in giving ancillary powers to constitutional courts: “the further the
court gets away from its paradigm task of review based on interpretation of a fundamental text, the more
it may find itself acting in a fashion that undermines its own legitimacy. Furthermore, the need to act
strategically over a long series of cases that call on various powers of the court means that sometimes
‘pure’ dispute resolution will be compromised by political expediency. Ancillary powers, then, are some,
but only some, of the tools the court must use to build up its political role over time” (Ginsburg and Elkins,
2009,).
 The model of diffuse judicial constitutional review
The model of diffuse constitutional review is also often called the American model because it originated
from case law of the US Supreme Court (Marbury v. Madison). According to this model, any American
courts have the power to strike down laws, statutes and certain government actions that they find violates
the constitution of the United States.
The model is a dispersed system, meaning that judicial constitutional review can be exercised by any judge
or court that is trying a case. There is no special court or specific procedure. Each judge can apply the
constitution in their own manner, and cannot apply the law in favour of the constitution. The questioned
law will not apply in the particular case nor in subsequent cases, but it is not expelled from the legal
system; it remains in place, even if this does not change the criteria taken into consideration to declare its
inapplicability.
The decision of the judge produces inter partes effect only, given that there is no annulment of the general
effects (Campillay, 2017). Under this diffuse system of constitutional review, constitutional matters are
dealt with by any ordinary court (a decentralised, diffuse) under ordinary court proceedings whereby the
supreme (or high) court in the system provides for the uniformity of jurisdiction through the established
appeals system. In Europe, Denmark, Estonia, Ireland, Norway, and Sweden have this system. Canada and
the United States as well as many Latin American countries (except Colombia, Ecuador and Peru) also
adopted this system or some of its variations. However, in Colombia the protection of constitutional rights
can be invoked before any court in the land as well as in Mexico. Therefore, these countries enjoy a mixed
system of concrete and diffuse constitutional review.
 Selected procedural aspects of judicial constitutional review
This section focuses on key procedural aspects linked to constitutional judicial review: standing rights,
contents and effects of the constitutional action, adjudication and dissenting opinions, while
acknowledging that some of them may at times be more substantive than procedural.
Standing rights
Typically, three different actors can access a constitutional court (including in diffuse models such as in
Mexico with amparo): a) institutional-political actors/officials; b) ordinary judges; and c) private
litigants (Pasquino, 2013).
Institutional-political actors/officials
The most common cases of referral by institutional-political actors involve 1) a selected number of public
authorities (president, prime minister, parliamentary speaker, etc.); 2) representatives of the Länder (in
general the political sub-units of a federal system: regions, provinces, states), as in Germany, Austria,
Spain, Switzerland and other countries with strong decentralisation; 3) a number of members of
parliament, as in the French, German and Spanish constitutional review systems.
 Ordinary judges
When the referral comes from ordinary judges, as is the case with the Italian questione incidentale, the
Spanish cuestión de inconstitucionalidad, the German konkrete Normenkontrolle, and since 2010 the
French QPC, the role of the court is to be a counter-power in relation to the elected lawmakers both
present and past, something that is not possible through control ex ante like the role performed by
the saisine parlementaire. In the case of the diffuse control model, ordinary judges do not refer the issue
to the constitutional court, but they adjudicate the legal controversy themselves and subsequently it
may reach the constitutional court (e.g. in Colombia and Portugal) or the supreme court (e.g. in Mexico)
through the ordinary appeal mechanisms or some variation of it (see next paragraph).
A special mention of administrative law
Public law combines constitutional, criminal and administrative concerns. In Germany administrative law
is referred to as “concretised” constitutional law, and in the United States it is often called “applied”
constitutional law. In the United Kingdom, given that there is no written constitution, it is sometimes
referred to as “natural justice”.
Administrative law has a constitutional character in that its goals are the protection of rights, control of
the administration and the setting of limits to government (Ginsburg, 2009) (Ginsburg and Chen, 2009).
In the OECD benchmark countries, administrative justice is the ordinary/usual instrument to challenge
government decisions and protect individual rights before the public powers of the state (e.g. in
New Zealand, Australia, Colombia, Portugal, Mexico, Spain, France, Germany, Austria and Switzerland).
 Contents and consequences of the constitutional action
The differentiation between abstract and concrete constitutional review is perhaps the first important aspect to
understanding the various modalities of judicial constitutional review adjudication (Ginsburg and Garoupa,
2011) (Garoupa and Ginsburg, 2015). In abstract review, the main addressee of the constitutional court ruling
is the political establishment, whereas in concrete review the main interested public in the constitutional ruling
is judicial and the involved individuals:
Political audience in abstract review – The main influence of the court is exercised through screening
legislation and shaping policy making. Here, the political audience appears to be more directly relevant to this
activity than the judicial audience, although in many cases the constitutional court may need the judicial
courts to enforce its decisions, such as with the French "conforming interpretation" approach (particularly if
other branches of government reject the constitutional court's decision to void legislation).
Judicial audience in concrete review – The judicial audience plays an important role in concrete review cases
because its implementation often (though not always) requires co-operation between the constitutional court
and ordinary courts. In many cases, concrete review can blur the separation between the constitutional court
and the rest of the judiciary, whether it is initiated by incidental referrals from ordinary judges or direct
constitutional complaints by an interested litigant. It can induce the constitutional court to participate in the
resolution of individual cases, either substituting for or complementing ordinary dispute resolution. The
constitutional court substitutes for ordinary courts when it decides cases that would otherwise be within the
judicial remit; it complements them when it serves to resolve constitutional questions that are then
implemented by ordinary courts.
While concrete review is often not immune from politics, the capacity to advance a political agenda through
concrete review tends to be more limited than through abstract review. Concrete review requires the
constitutional court to develop specific legal reasoning for a decision that often makes it resemble the decision
of an ordinary court.
 Adjudication: The relationship between constitutional and ordinary courts
Constitutional adjudication needs to be distinguished from ordinary judicial adjudication: ordinary
law is made by the public powers and applies to the people. If individuals do not obey, the
government is entitled to use force. Constitutional law, on the contrary, is made by or at least
attributed to the people as its ultimate source, and it is to constrain the public authorities. If the
government does not comply with the requirements of constitutional law, there is no superior
power to enforce it. For example, there is evidence that, regarding the constitutive function
(i.e. the organic part of the constitution), the structure of public power will usually conform to the
constitutional arrangement; while in the case of its function to regulate the exercise of political
power (i.e. the firmly established part of the constitution), enforcement cannot always be taken for
granted (Grimm, 2011).
 Dissenting opinions
Dissenting (judicial opinions that differ in the reasoning and in the outcome from the one adopted by the
majority) or separate opinions (judicial opinions that differ in the reasoning, but not in the outcome, of the
analysis from the one adopted) are those issued by one justice or a minority of justices in a court dissenting
from the majoritarian understanding of the issue at stake. Dissenting or separate opinions usually tend to
carry little authoritative legal force and generally have no precedential value. At the same time, in some
countries dissenting opinions are regarded as significant for several reasons, including fostering the
transparency of the judicial process since they enable individual judges to voice their disagreement with a
majority opinion. Separate opinions are also seen as serving important functions in some countries. First,
they provide reasons for expressing disagreement with a majority decision legitimising the decision. Their
function is thus to persuade the reader that the dissent is justified. In this respect, separate opinions
resemble other types of opinions in that they all seek social legitimacy stemming from the transparency of
the judicial decision-making process, and consequently they increase credibility of courts in the eyes of the
litigants and the public. An alternative view espoused in a separate opinion could encourage an appeal (in
lower courts). Dissenting opinions also enrich the constitutional culture and the engagement with
constitutional interpretation. A more dynamic constitutional culture follows, marked by greater levels of
reasoned discourse. This fosters constitutional debate by showing the plurality of constitutional meanings.
For the individual judge, such a culture can represent independence. It highlights underlying constitutional
choices and does not conceal them.
 Selection of constitutional judges
The selection of constitutional judges can be a controversial area, given the importance of the constitutional
court’s task and the politically sensitive cases it reviews. A key objective sought by the majority of countries in this
regard is to ensure that no particular group controls the selection process and becomes able to dominate the
outcome in their favour. It is also often the case that the decision making of constitutional judges (given the very
abstract constitutional texts) could be significantly impacted by their worldview. It could therefore be worth
investing efforts in finding a path to a balanced composition of the constitutional court. This section will focus on
the appointment of constitutional judges only.
 Required qualifications
Because of the political dimension of their functions, the required qualifications of constitutional judges vary
widely across countries and generally differ from the required background for ordinary judges. Constitutional
judges are often not career judges, but rather highly qualified and respected lawyers, legal academics or
former officials with many years of experience. In some countries the required qualifications will depend on the
appointing institution, or there will be a set minimum for the number of jurists that must be chosen; some will
apply a minimum number of years of experience while others do not. For example, in Austria judges proposed
by the parliament can belong to any professional category requiring a law degree and must have at least 10
years’ experience; those acting as president and vice president of the court, proposed by the federal
government, must be judges, civil servants or law professors. In Germany, each justice must have completed a
legal education that qualifies them for judicial office pursuant to the German Judiciary Act, and must be over
forty years old. In Portugal, six persons appointed by the Assembly of the Republic are required to hold a
doctorate, a master’s degree or a first degree in law, or to be judges from other courts. The three judges co-
opted by the court plus the remaining must be judges (arts. 12-14 Law on the Constitutional Court). In Spain, a
legal background with 15 years of experience is required. In Mexico, candidates must hold a law degree. In
France, no particular professional background or age limits apply (art. 56 of the constitution).
 Key options and questions to consider
Defining the institutionalisation of constitutional review draws attention to key issues related to the role and
powers of the courts, the constitutional court and the protection of fundamental rights. The experience of the
benchmark countries can suggest and help inform several considerations for the design of a system of judicial
constitutional review, especially one that involves a constitutional court (Castillo-Ortiz, 2020):
1.There is no perfect model of constitutional review. Designing constitutional review, whether through the
judiciary or by establishing a specialised constitutional court, often involves balancing different values:
democracy, majoritarian rule, protection of minorities’ representation, and individual human rights, as well as
affirming the constitutional court’s independence from political parties while preventing excessive judicial
activism through self-restraint. Constitutional courts’ design necessarily involves trade-offs among these
values.
2.Limiting and clearly demarcating the powers of constitutional courts in the constitution or in subsequent
constitutional legislation may facilitate a good balance among those values and reduce institutional
disagreements in the future – This is especially true given that in some cases, constitutional courts have
interpreted their own jurisdictional powers broadly and have extended the parameters of their control, as well
as the object of that control. Institutional conflicts usually stem from the double legitimacy of constitutional
and ordinary (especially supreme) courts. Conflicts have occurred where judicial intervention by the
constitutional court is intense and strong (Mańko, 2014) (Geisler, n.d.) (Garlicki, 2007).
 3.Three essential tenets for constitutional courts include partisan independence, a balanced composition and
self-restraint – Constitutional courts tend to acquire legitimacy if they contribute to democracy and human rights
protection; are perceived as politically independent; achieve a balanced composition (politically and in terms of
diversity); and practice self-restraint. Judicial independence is linked to the principle of the rule of law, as the ideal
of rule of law can only be realised through an independent court. However, constitutional courts, in contrast to
ordinary courts, are relatively new institutions (if compared to ordinary courts); they specialise in politically
sensitive issues; their members are usually selected in a more political manner; and sometimes they decide
challenges brought by political institutions. Constitutional restraint is linked to the democratic principle: exhibiting
self-restraint in relation to the parliament, constitutional courts allow a democratically elected actor to make the
most important policy decisions. And protection of democracy and human rights is linked to the general
preservation of liberal constitutionalism, as liberal constitutionalism has political freedom at its core. Failure to
uphold any of these tenets on the part of constitutional courts can result in important reputational costs (Castillo-
Ortiz, 2020).
4.Due consideration should be given to the form of judicial review (mild, strong, or a mixed system) – In
reflecting on the options for designing constitutional review, the question is not only whether to have a
constitutional court, but also what to have as a range of review powers available to it, and where to allocate the
final authority.
 Cont.

The organic part of the constitution – The substantive scope of competencies assigned to the constitutional
court varies across countries. One option is for the constitutional court to mainly deal with the “organic” part of
constitutional provisions, i.e. the vertical and horizontal allocation of powers and responsibilities to the various
political actors in the country, especially among the executive, the parliament and the judicial system, as well as
with competency conflicts between lower levels of government (local and regional or federated governments) and
the central government. Another option is for the constitutional court to also cover protection of fundamental
rights provisions, either as a first or last instance. This is explored in the following point (7). In some countries,
constitutional courts have also been entrusted with varied ancillary functions, besides the core task of
constitutional review of legislation and administrative action. Ancillary powers can include proposing legislation;
determining whether political parties are unconstitutional; certifying states of emergency; impeaching senior
governmental officials; and adjudicating elections.

Fundamental rights protection by the constitutional court:

Another option is to entrust protection of fundamental rights to the constitutional court. In this system,
fundamental rights protection is more centralised (e.g. in Spain and Germany). Assigning the
constitutional court a last instance character in the national sphere does not preclude appealing to
supranational courts, such as the ones outlined above. Constitutional courts often refer to international
human rights rulings. In addition, a significant amount of cross-fertilisation and “borrowing” exists among
constitutional courts when deciding cases, suggesting that human rights protection is ← 1. Australia,
Austria, Colombia, Finland, France, Germany, New Zealand, Mexico, Portugal, Spain, and Switzerland are
the benchmark countries for this chapter.
increasingly a transnational process and embedded in what has been called an “international judicial
dialogue” (Ginsburg, 2008).