Constitutional review
Constitutional review, or constitutionality review or constitutional control, is the evaluation, in some countries, of the constitutionality of the laws. It is supposed to be a system of preventing violation of the rights granted by the constitution, assuring its efficacy, their stability and preservation.[1]
There are very specific cases in which the constitutional review differs from common law to civil law as well as judicial review in general.[2]
Written and
The judicial control of constitutionality applies to normative acts as well.[clarification needed][3]
Control systems
Depending on how each country decides to organize his constitutional reviews, it can be attributed to a different organ. In some countries, part of the review can be attribution of a political organ. For instance, In Brazil, the declaration of unconstitutionality in a concrete case by the Supreme Federal Court (STF)[clarification needed] can be suggested to senate to give to this declaration global effects.[4]
Bans on constitutional review
Countries can put a ban on constitutional review.
Ban on constitutional review in the Netherlands
The constitution of the Netherlands explicitly forbids courts to rule on the constitutionality of laws passed by parliament. Reason for banning constitutional review in the Netherlands is that it would put the judiciary in a legislative position, which conflicts with the idea of Separation of powers. Dutch parliament is responsible for adherence of laws it passes to the constitution. The Supreme Court of the Netherlands has ruled that this ban on constitutional review also extents to rulings on the creation of laws, rulings based on the Charter for the Kingdom of the Netherlands and general principles of law. The monist Constitution of the Netherlands does explicitly allow the review of laws by treaties that contain provisions binding all members. Consequently, treaties like the European Convention on Human Rights in practice have taken constitutional review-like effect.[5]
See also
- Constitutional review in Germany
- Constitutional Review Commission (Tanzania)
- Judicial interpretation
- Judicial review
- List of constitutional courts
- Rule of law
- Rule According to Higher Law
References
- ^ Mavcic, Arne (2001). The Constitutional Review (PDF).
- NYU Law. Retrieved 19 December 2022.
- ^ "Study on Individual Access to Constitutional Justice" (PDF). Council of Europe - Venice Commission. Retrieved 6 July 2012.
- ^ Paulo e Alexandrino (2009), pp. 302-303
- ISBN 9789013146509.