An Introduction to Comparative

Constitutional Law

10. Judicial Review II

SS 2020-21
DR. FELIPE OLIVEIRA DE SOUSA, MPHIL
Senior Researcher at the Center for Law,
Behaviour and Cognition (CLBC)
 Definition
• The term ‚judicial review‘ designates any process by which a judge
(or group of judges) examine a legal decision or norm and check its
compatibility with a higher norm;

Examples: regional law versus national law; administrative

decision by a public authority versus general legislation;
national statutes versus constitution;

• Judicial review is called constitutional review when what is examined

is the validity of a national statute in relation to the national
constitution;

• Even though judicial/constitutional review is common in Western

democracies, not all countries have it;
e.g. in the Netherlands, judges are explicitly prohibited to
review legislation in light of the Constitution (art. 93, GG);

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 Central Distinctions

à Abstract versus Concrete;

à Ex post versus ex ante;

à Centralized versus Decentralized;

à It can take different forms (e.g. compatibility of laws with

constitution, or with an international treaty, such as ECHR – in
which case it is called treaty review);

à Courts may be empowered to do different things (e.g. quash

statutes; declare incompatibility in a non-binding way etc.);

à Disapplication versus invalidation of statutes;

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 United States I

• In the US, judicial review only takes place in the context of actual cases and
controversies, i.e. only concrete judicial review (art. III (2) US Constitution);

• All federal judges are empowered to do it;

*Federal judges can review the constitutionality of both State and
federal legislation, as well as of State and lower level federal court
decisions upholding legislation;

Tip: in the US, this power derives not from the Constitution, but from case-law,
Marbury v. Madison 1803, where the US Supreme Court held that the US
Constitution had to prevail over ordinary legislation [next slide];

• There is no abstract review nor ex ante review in the US;

• US Supreme Court is not specialized in constitutional matters;

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 United States II
• Federal judges do not have the power to declare a statute void, only to
disapply it in concrete cases;
* Once the US Supreme Court finds a statute in violation of the
Constitution, a precedent is established that all other courts will have
to disapply the statute as well;

• Notionally, the result of judicial review in the US is not the invalidation of

statutes, but their disapplication. Statutes deemed unconstitutional still
form an integral part of US legislation;

• Rationale behind Marbury v. Madison:

It is the judiciary‘s task to solve disputes between parties by applying
the law. If in that context two applicable sources of law conflict, the
judge must resolve this conflict before solving the case. If a conflict
arises between the Constitution and an ordinary statute, the former is
higher in rank and thus overrides the latter. Unconstitutional statutes
must therefore not be applied to a case, but instead left aside;

Since all judges are engaged in the application of the law to resolve
disputes, they all may be confronted with this problem, and are thus
empowered to set aside unconstitutional legislation;
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 Germany I

à Differently from the US, Germany has a special constitutional court

to carry out review functions (the Bundesverfassungsgericht);

à It has both concrete and abstract review, but only ex post;

à Whereas courts are in general empowered to examine the

constitutionality of statutes, the decision to invalidate these statutes
on grounds of unconstitutionality is centralized and can only be
taken by the Federal Constitutional Court;

à The FCC is empowered, among other things, to declare a statute null

and void;

à Germany has decentralized review in concrete cases, but centralized

in abstract review;

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 Germany II
• Concrete Review:

- All ordinary German Courts have the power to examine the constitutionality
of statutes, but they do not have the power to annul these statutes;

- Whenever an ordinary court - in the context of a particular case – concludes

that the statute to be applied is unconstitutional, it must freeze proceedings
and refer a preliminary question to the Constitutional Court (art. 100(1));

- The Constitutional Court will then rule on the matter before the case
continues;

- The Federal Constitutional Court is also competent to decide in a host of

other cases (art. 93 BL); e.g. disputes between different organs or layers of
public authority about the correct interpretation of the Basic Law
concerning the scope of competences;
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 Germany III
• Art. 93 BL refers to two other procedures: the constitutional complaint
procedure and the abstract review procedure;

• Constitutional complaint

In this procedure, an individual can claim an infringement of enumerated

constitutional rights by public authority (art. 93 (1) (4a). It extends to any
act of public authority, including statutes and court decisions;

Access for individuals is restricted: (i) applicants must have exhausted all
ordinary judicial remedies before launching a case before the
Constitutional Court (art. 94(2) BL); (ii) applicants must also demonstrate a
direct and concrete injury as a result of the contested measure;

• Abstract Review

This procedure can be started by the federal government, a State

government and, since 2009, by one quarter of Bundestag members (art.
93(1) (2) BL). It can be triggered at any time;
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 Germany IV
à Mitigation techniques:
- The Court first tries to interpret legislation as far as possible in
light of the Basic Law;

- If such interpretation is not possible, the Court may, in the

course of abstract review, concrete review or complaint
procedures, declare a statute unconstitutional and void;

- Retroactive effects are limited only to criminal provisions. In

all other cases, there is no retroactive effect;

- Other techniques; the Court may declare a statute

unconstitutional but not void; it may declare a statute
constitutional for now yet note that it will become
unconstitutional in the near future;

* Such techniques are mainly directed at prompting the

lawmaker to change the statute;
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 UK I
• In the UK, there is no constitutional review of statutes, since there is no
central document codifying the most fundamental rules of the state;

• Parliament occupies the central role (the principle of parliamentary

sovereignty) and only Parliament can unmake a statute;

• This does not mean that there is no judicial review in the UK;

• UK has a Supreme Court that is allowed to issue declarations of

incompability;

• The UK is a dualist system when it comes to international treaties, i.e.

treaties can be relied upon only once they have been implemented into
national law;

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 UK II:
The case of the Human Rights Act (HRC) 1998
• The Human Rights Act orders judges to apply human rights-friendly interpretation as
far as possible, unless Parliament explicitly deviates from protected rights;

• Parliament remains free under domestic law to encroach upon fundamental rights if
it so desires;

• Since 2000, UK citizens can rely on Convention rights as enumerated in the HRA;

• Judges are not allowed to set aside Acts of Parliament:

(i) They must interpret legislation as far as possible in the light of
the protected rights (section 3 HRA 1998);
(ii) If the violation is apparent, the court may issue a declaration of
incompatibility, drawing Parliament‘s attention (Section 4 HRA);
(iii) The Court must notify the government;
(iv) Effect: the declaration triggers a fast-track legislative procedure enabling
the minister to insert amendments to the statute by way of an order (section
10 HRA 1998);
(v) The draft order is then put before both houses of Parliament, which can
then approve it by a resolution;

In any case, UK Parliament remains free to keep its legislation in place, even if the
Supreme Court has declared it incompatible with Convention rights;
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 UK III

• While the process happens, the issuing court must

complete the proceedings before it and apply the
statute in its original form;

• There is thus a presumption of compability

operating under the principle of parliamentary
sovereignty;

• The Human Rights Act 1998 is a statute like any

other in the UK, and may be amended, replaced or
sat aside at any time by another Act of Parliament;
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 France I

• France is the only country analysed that has an ex ante judicial review, i.e. a
system whereby laws can be reviewed before they enter into force;

• The relevant institution is the Constitutional Council, which is not strictly

speaking a court – e.g. it was not necessarily staffed by lawyers and did not
hear individual cases;

• Since 2008, France allows also concrete ex post review;

Its two supreme courts – the Court of Cassation and the Council of
State – may refer questions regarding the constitutionality of statutes
to the Constitutional Council if the constitutionality of a statute is
challenged in court proceedings (art. 61-1);

• France has abstract ex ante and concrete ex post review;

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 France II
• Concrete review (cc. Organic statute no. 2009-1523):

- Lower ordinary or administrative courts must refer a preliminary question to their

respective supreme court if they believe three conditions are fulfilled:

(i) the constitutionality of the contested statute is relevant to the proceedings;

(ii) the statute may not already have been declared unconstitutional by the
Constitutional Council, unless there is a change if circumstances;
(iii) the question represents a necessary degree of seriousness;

- The relevant supreme court will then check whether these conditions are fulfilled
and refer the question to the Constitutional Council;

- The CC will then rule on the matter. According to art. 62 (FC), if the provision is
deemed unconstitutional, it is repealed from the moment in which the decision by
the CC is published, unless a later date is established in the decision itself; the CC
can also determine the conditions and limits within which the effects the provision
has created may be called into question;

- In France, constitutional review covers not only the Constitution itself, but also the
Premable, the Declaration of the Rights of man and the citizen of 1789, and other
documents;
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 France III
• Abstract ex ante review (art. 61 FC):
- As a general rule, any statute may be referred to the Constitutional Council
before its promulgation for constitutional review;

- This process can be triggered by the President of the Republic, the Prime
Minister, the president of the National Assembly, the president of the
Senate or sixty deputies or sixty senators;

- Differently from ordinary statutes (lois), organic statutes must be submitted

to the CC before their promulgation;

- The CC has one month to reach a decision; in cases of urgency and if

requested by Government, the CC must decide in eight days;

- According to art. 62, a provision declared unconstitutional may ‚neither be

promulgated nor implemented‘;
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 Brazil I
à Originally, the Brazilian system of judicial review was heavily inspired by the US:

every judge could refrain from enforcing legislation whenever she or he was
convinced that the statute was unconstitutional. Throughout the years, the system
gradually evolved into a more concentrated, German-like system;

à Brazil has both concrete ex post and abstract ex post judicial review;

à Because every judge may refrain from enforcing a statute she or he deems
incompatible with the Constitution, it may happen – particularly in lower
instances – that a statute is enforced by some and not enforced by other judges;

à The STF can adopt a wide-range of techniques; e.g. declare the constitutionality
or unconstitutionality of a statute, deliver an interpretation according to the
Constitution, partial declaration of unconstitutionality; enact binding
guidelines;

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 Brazil II

• Concrete review:

- Extraordinary appeal (art. 102, III), of last instance;

given the massive number of cases, since 2004 (with
amendment 45), the STF is allowed to review only the most
important cases;

Some criteria have to be fulfilled, e.g. the general repercussion of the

constitutional issues argued in the case, which has then to be voted by a
2/3 majority in the Court; a court itself must file the appeal;

Initially, the effect of the decision was limited to the parties of the
dispute. After 2004, the STF has also been empowered to enact binding
guidelines (sumulas vinculantes), i.e. the power to decide whether or
not to grant binding and erga omnes effects to decisions made in
concrete cases and controversies.

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 Brazil III:
Abstract Review
• There is a variety of procedures;
the direction action of unconstitutionality (ADI); the direct action of
unconstitutionality for omission (ADO); the declaratory action of
constitutionality (ADC); and the allegation of disobedience of
fundamental precept (ADPF);

• The ADI is the most used and prominent one;

According to art. 103, the President of the Republic, the directing
boards of Senate and Chamber of Deputies, the directing board of
state legislature, state governors, the Federal Procurator-General,
the federal council of the Brazilian Bar Association, political parties
with representatives in Congress, and nationwide confederations of
trade unions or professional associations are allowed for an ADI;

• The ADI process is restricted to challenge the constitutionality of state and

federal laws (municipal laws and laws older than the Constitution can be
questioned via an ADPF);
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 China
à Strictly speaking, China has no system of judicial review;
The resistance is such that the Supreme Court cited the Constitution as
grounds for legal interpretation for the first time in its history in 2001
(proposal that was formally abandoned in 2008);

à The review is currently conducted by the NPC‘s Standing Committee, which is

the state institution responsible for ‚interpreting the constitution‘;

à China‘s legislative review process may be initiated by almost anyone;

Art. 90 of the Law on Legislation provides that certain state institutions –
e.g. State Council, the Supreme Court, the Supreme Procuratorate – have
the right to request and initiate the review process. But private citizens
or social groups may also make written proposals to the Standing
Committee if they believe that a given legislation contravenes the
Constitution or any law;

Tip: in the case of citizens, the Legal Affairs Commission of the Standing Committee
studies the proposal and distribute to relevant special committees for review only
‚where necessary‘ (art. 90, 2, LL). In practice, even though thousands of such
requests have been made by private citizens, none of them has been deemed
‚necessary‘ to initiate the review process.
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 Conclusion

Thanks for your virtual attention!

DR. FELIPE OLIVEIRA DE SOUSA | AN INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW | 10. Judicial Review II 20