Public law

Constitutional Justice in a Comparative Perspective

Rigid Constitution

As we have said, the Constitution is considered as "supreme law" meaning that it has a constitutional supremacy. In order to protect this constitutional supremacy, there exist the constitutional guarantees:

A. Special Procedure for Constitutional Revision (visto prima)

B. Constitutional Justice / Judicial Review of Legislation / Constitutional Review / Judicial adjudication of legislation

Definition

Constitutional justice is a guarantee of constitutional supremacy (rigidity) face to acts and behaviours of government (including parliamentary statutes) which determines the elimination from the legal system of the act declared unconstitutional or its not application.

It is a judicial guarantee: consisting in a judgement by an independent body (court) at the end of a trial.

C. If the object of such control are statutes → we talk about "Judicial Review of Legislation" or "Judicial adjudication of legislation".

"Adjudication of legislation" is the term used to define all the functions that are carried out by a Constitutional or Supreme Court (but also by lower courts depending on the model adopted) in ensuring pursuance of the Constitution and protection of fundamental and basic rights.

Why does a legal system need a Constitutional or Supreme Court?

1. Ensure legal certainty and equality
2. Ensure the rule of law
3. Resolve conflicts between central and decentralised government

Models of Constitutional Adjudication of Laws

In a comparative perspective, we should note the fact that countries having a rigid and codified constitution do not all adopt the same system of review.

The US Model

Constitutional Justice was established by a decision of the Supreme Court in 1803, with the case Marbury v. Madison presided by Chief Justice Marshall. (it is not part of the written constitution)

What happens was that the President Adams, before his term ended, had appointed a series of judges and justices of the peace.

One of this was William Marbury. Although, the new President Jefferson, ordered that the remaining commission should not be delivered, but without the commission, the appointees were unable to do their duties.

Marbury and two others appointees went to the Supreme Court asking to order to the new Secretary of the State to deliver their commissions.

The Supreme Court, concluded that the applicants did have a vested right and that the appointment was not revocable. However then, the Court realised that the provision of the Judiciary Act 1789 (that gave the power to issue writs of mandamus) violated Art.3 (regulates the judicial power).

For the very first time, the Court explicitly clarified the fact that it has the power to carry out judicial review of legislation. Justice Marshall stated: "It is the function of the judiciary to interpret the laws in order to apply them in concrete cases. When two such laws are in conflict, it is the judge who must determine which law prevails and then apply it."

it only binds the parties to the controversy) and also “extunc” as the non-application refers to a past case. (means since then, beginning).*the review is also a “posteriori” (or repressive) as the law is reviewed after it has come into force;*the review is “incidental”.

European Model (Kelsenian/Australian model) stIn Europe the Constitutional Review of Legislation was introduced after 1 World War, with the Constitutionof Austria in 1920 by the influence of the philosopher Hans Kelsen.ndIt expanded then to most countries later after the 2 World War in different “waves” that ended in the lastthdecade of the 20 century.N.B It was impossible first to establish a constitutional review as the constitution was flexible ≠ rigid.

Features of the Kelsenian version of 1920:

1. Centralization
2. Abstract review
3. Erga omnes and ex nunc effects of unconstitutionality decisions

Centralization

The Constitutional Justice is centralized and specialized:

One a specialized court, the Constitutional Court, has the power to assess the constitutionality or to hold that a statute is unconstitutional. The ordinary courts don't have the power, they must simply apply legislation.

Ordinary judges are not allowed to set aside legislation, neither, in the original Kelsenian Model, are allowed to refer the question to the Constitutional Court. They had to enforce legislation, although they thought it is not consistent with the Constitution.

Abstract review

There wasn't a constitutional review related to a specific case. The court examine a statute in the abstract without needing it to be apply to any actual controversy among real adversaries as it is the result of a "principaliter" proceeding.

In the original model, access to constitutional court is strictly circumscribed: constitutional challenge could be brought only by public institutions, such as the government (federal or regional), a number of members of the parliament.

The general prosecutor and so forth

Effects of unconstitutionality decisions

Effects for all the people (erga omnes = it is generally binding) and for the future, non retroactive (ex nunc = we will have a binding effect only from the moment the decision was taken by the Court).

If the Constitutional Court holds a statute is unconstitutional, the statute is expelled from the legal system→ Hans Kelsen said that the Court acts as “negative legislature” ≠ positive legislature: Parliament introduces statutes.

The review should be “a posteriori”

Early changes in the European Model

In Europe was very difficult to accept to control the law. Only after 2 World War when the Democratic Pluralistic State was established, commencing with Italian and German Constitution, almost every country (except France) introduced new means of triggering constitutional reviews.

American model > common law countries

Austrian model > civil law countries

There were some changes

Regarding the features of the Austrian Model:

1. Hybrid systems: combine both centralised and decentralised review
• Constitutional Question / Incidental Proceedings / Judicial Referral (part of the Italian system 1/1948)
• Constitutional questions can be raised by ordinary judges
• When an ordinary judge has to decide a case, if he believes that the applicable statute is unconstitutional, he can refer the question to the Constitutional Court
• The Court will review the constitutionality of the statute, but it will not decide the case: the decision is up to the ordinary judge, that has to wait (as the ordinary trial is suspended) the decision on the constitutionality of the statute, before reassuming the proceeding
2. In the Italian Constitution, as far as the Constitutional Law 1/1948 is concerned:
• Subjects: every judge during proceedings
• Object: laws and acts having the force of law
• Standard: Constitution, constitutional laws, "interposed norms"
• Conditions:

Constitutional Court

Functions of Constitutional Justice in Italy

1. Composition (art.135)
2. Competences
3. Effects of decisions

Composition (art.135)

2 part, Title VI

15 judges chosen among legal experts (the Constitution select 3 categories in which legal experts can be appointed: 1) judges from the higher courts; 2) law professors; 3) lawyers with more than 20 years of experience). Judges sit on the Court for 9 years and cannot be re-elected.

• 1/3 (=5) are named by the President of the Republic.
• 1/3 by Parliament in joint session (institution made up by 2 Chambers sitting together. The Italian Constitution establishes that for electing these members, Parliament has to sit in joint session and the candidate to the Constitutional Court needs a majority of 2/3 in the first three ballots and then 3/5.
• 1/3 by the Supreme Courts (3 Corte di Cassazione, 1 Consiglio di Stato and 1 by Corte dei Conti)

Effort of a balanced composition of legal expertise: the Constitutional Court's

Composition reflects the effort to balance the need for legal expertise, characteristic of a judicial body, against the acknowledgment of the inescapably political nature of constitutional review. (As for politics, constitutional review has a political nature)

Competences (art.134)

“The Court has 3 power:”

• Adjudication of constitutionality/constitutional review of laws and acts having force of law adopted by the State and the Regions (key aspect of the constitutional justice)

>> core business as it dedicates most of its activities to this competence.

The main object is State Legislation

There are two main avenues:

• direct review recognising to the national and regional government (art.127)
• indirect review (art.137)

*Art.117.3 Regional laws concerning concurrent subject-matters have to respect the fundamental principles contained in the State framework laws.

Conflicts to resolve separation of power between organs with the national government and