FRAMEWORK

Authority for Review

Constitutional review, in the sense of judicial review of the actions of all organs of State, including the legislature on grounds of constitutionality, is an established feature of Australian constitutional arrangements. Review was assumed by the framers of the Constitution either as a consequence of the status of the Constitution as an act of the Imperial Parliament or as a necessary incident of federation or both. It was accepted with equanimity by the first Commonwealth Attorney General, charged with the responsibility of introducing the legislation to establish the High Court. That Court entertained a range of constitutional disputes in the first year of its establishment, and within five years, it had invalidated laws of both the Commonwealth and some State Parliaments, consistent with Quick and Garran's expectation that it would be a “guardian of the Constitution” against “encroachments” from both spheres. In 1951, a Justice of the High Court described “the principle of Marbury v. Madison” as “axiomatic” in Australia. The description has become de rigueur, and it unquestionably reflects Australian practice.

It is occasionally noted, nevertheless, that the Constitution does not explicitly provide for review. Review of legislation on grounds of constitutionality also jars with one strand of the Australian constitutional inheritance, although it is entirely compatible with the other. Neither of these points should be overstated.

One particular aspect in which it is possible to identify interferences of constitutional courts in the legislative function is precisely in matters of legislation on judicial review, particularly in countries with concentrated systems of judicial review, in which not only constitutional courts have created rules of procedure in spite of the existence of a special statute establishing them, but also they have assumed new powers of judicial review and created new actions that can be filed before the courts.

CONSTITUTIONAL COURTS CREATING THEIR OWN JUDICIAL REVIEW POWERS

The Judge-Made Law Regarding the Diffuse System of Judicial Review

In the diffuse, or decentralized, system of judicial review, being a power attributed to all courts, judicial review has always been deduced from the principle of the supremacy of the Constitution and of the duty of the courts to discard statutes contrary to the Constitution, always preferring the latter. Such power of the courts, consequently, does not need an express provision in the Constitution that instructs courts to give preference to the Constitution. As Chief Justice Marshall definitively stated in Marbury v. Madison (1 Cranch 137 (1803)):

INTRODUCTION

This National Report for India seeks to review the way in which the courts in India have employed and expanded the power of judicial review and in that process ended up legislating on many occasions. It first highlights how the Indian constitutional courts have not only vigorously guarded their power of judicial review but also have self-empowered themselves through a series of decisions. It then shows, with the help of a few illustrative cases, the extent to which the Indian courts have acted as positive legislators. The chapter concludes with a brief critique of this trend.

At the outset, it should be noted that, unlike some other countries, in India there are no separate courts to deal exclusively with constitutional issues. Under the Indian Constitution, the power to interpret the Constitution and entertain judicial review petitions is exercised by the Supreme Court and the High Courts. In this report, therefore, the term constitutional courts refers to the Supreme Court and the High Courts taken together. Nevertheless, considering that the Supreme Court has the final say on constitutional interpretations and on judicial review petitions, the report will primarily focus on the constitutional jurisprudence of the Supreme Court.

JUDICIAL REVIEW: CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATION

The Indian Constitution envisages “the judiciary as a bastion of rights and justice.” The Constitution has made extensive provisions regarding the appointment, tenure, salaries, retirement age, and removal of the judges to secure the independence of judiciary.

INTRODUCTORY CONSIDERATIONS

One of the main topics proposed for discussion at the eighteenth International Congress of the International Academy of Comparative Law was the legislative role of Constitutional Courts in contemporary democracies. The Brazilian state, like many of those from the Iberic and Latin American tradition, can be characterized as a mixed legal system that attempts to reconcile a model of diffused and incidenter tantum judicial review with a concentrated and abstract model in which the Constitutional Court pronounces abstract decisions in direct actions of unconstitutionality. These decisions have erga omnes and strictly binding effects.

Before the Constitution of 1988, the Brazilian system of judicial review could be classified as much more akin to the American tradition of judicial review than to the Austrian model developed by Hans Kelsen, which concentrates the jurisdiction on constitutional matters in a single Constitutional Court. Every judge was (and still is) competent to assess a violation of the Constitution by the ordinary laws. The declaration of unconstitutionality was merely a step for the judge to follow in the justification of his or her decision. Even though a dispute over the constitutionality of an Act could eventually reach the higher courts by means of an appeal, there was no warranty that this would ever happen.

Although there was an abstract action for assessing the constitutionality of statutes, the scope of this action was very strict and only the General- Attorney of the Republic (who was at the same time the Procurador [Prosecutor] of the Federal Government and the Chief of the Public Ministry) was empowered to bring it before the Supreme Court.

INTRODUCTION

Contrairement a la constitution colombienne de 1886 qui autorisait dans certains cas le Président de la République, le Congrès, et la Cour Suprême de Justice à appliquer directement le contenu du texte constitutionnel, le nouveau texte promulgué par l'Assemblée Nationale Constituante de 1991 inclut une liste importante de principes et règles directement applicables par les juges, fonctionnaires administratifs ou litigants en Colombie.

La constitution de 1886 ne prévoyait pas de mécanismes d'application généralisée comme celui de l'exception d'inconstitutionnalité; celle-ci existait mais il était rare que le conseil constitutionnel y ait recours.

Selon le concept traditionnel de l'état de droit, les juges avaient pour mission d'appliquer les règles et principes énoncés par les codes et les lois. La constitution s'exprimait à travers la loi et l'interprétation directe du texte supérieur ne se faisait pas, les niveaux de constitutionnalisation étaient très vagues.

La Constitution de 1991 a changé les concepts du constitutionnalisme: elle a imposé la suprématie directe de la constitution et la protection des droits constitutionnels fondamentaux des citoyens en rendant règles et principes directement applicables à tout type de conflits.

Cette dernière décade a connu de nombreux changements au niveau de la théorie des sources du droit (liant l'application directe de la constitution à une nouvelle utilisation des précédents judiciaires), au niveau de l'argumentation juridique et au niveau de la façon d'aborder le problème des sources et l'interprétation du droit.

ON THE ORIGINS OF THE NORWEGIAN SYSTEM OF JUDICIAL REVIEW

The Norwegian system of judicial review of the constitutionality of legislative norms is the second oldest in the world. With no explicit basis in the Constitution of 1814, which is still in force and therefore the second oldest still in existence in the world as well, it has emerged through court practice since around 1820. Furthermore, it should be noted that the final decisions (i.e., mainly those of the single Supreme Court) were systematically respected (if not always loved) by the other constituted powers.

After nearly two hundred years, it seems therefore safe to affirm that the power of judicial review of ordinary legislation does not have a firm basis in article 88 of the Constitution, read in conjunction with constant institutional practice: according to this provision, the Supreme Court “pronounces judgment in the final instance.” This goes not only for “traditional” legal matters like penal and civil law. Even constitutional law falls within the scope of judicial review.

From 1814 onward, the opinions (reasoning) on point of facts and law on which the verdicts of the Supreme Court were based were kept secret. For a number of reasons, including political concern about controversial cases of judicial review, this situation caused rising unrest in Parliament, which – notwithstanding resistance from the executive – fought through legislation (adopted in 1863) forcing the Court judges to vote individually while stating their reasons in public.

The position of the Constitutional Court of the Slovak Republic (hereafter “Constitutional Court”) as a positive legislator has been widely influenced by two factors. The first is the fact that Slovakia had only fractional practical experience with constitutional judiciary, and furthermore only within the common state with the Czechs.

The first experience dates back to the period of the establishment of the first Czechoslovak Republic between the two world wars, when the Constitutional Court was created on the basis of the Constitution of Czechoslovakia of 1920, which was strongly influenced by Hans Kelsen's theory. It has been one of the first practical experiments that came from this doctrine, and it is also an exemplary illustration of the fact that practical realization of a theoretical construction can be scholastic in practice. The factual activity of this court had only marginal effect on the state's constitutional life. The second attempt was the establishment of the Constitutional Court of the Czechoslovak Socialist Republic. This court was incorporated into the Constitution of a totalitarian state within the time of political warming, the so-called Prague Spring, in 1968–69. The failure of the experiment of socialism with a human face was also the gravedigger of the actual founding of this constitutional court. At last, in the third attempt, the Constitutional Court of the Czech and Slovak Federal Republic was created in 1992 after the fall of the totalitarian regime.

This Report asks whether American courts that decide constitutional cases, and ultimately the Justices of the U.S. Supreme Court, may be characterized as legislators, and in particular, as “positive” legislators. After defining the terms, the report reviews the Supreme Court's practice of constitutional lawmaking and considers academic and political reactions to that practice. The Report concludes with an account of challenges that the Court has encountered in crafting remedies fit to fulfill the promise of its constitutional rulings.

LEGISLATORS AND POSITIVE LEGISLATORS

The topic of this Report engages two analytically distinct ideas – legislation and “positive legislation.” By legislation, we mean any action that adds a rule to a given system of law. Historically, American jurisprudence has displayed an ambivalent attitude to the idea that judges legislate in this sense. Judicial lawmaking is, of course, an entirely familiar feature of common law adjudication, but until the latter part of the nineteenth century, this proposition was widely considered heretical. The orthodox view was that what might look like judicially created rules were, in fact, deductions from a preexisting body of common law principles. By the middle of the twentieth century, however, this idea had been fully debunked, and there was common agreement that “judges do and must legislate,” although they can “do so only interstitially; they are confined from molar to molecular motions.” Critically, moreover, such judge-made law was universally acknowledged to be subject to correction and revision by elected legislatures.

INTRODUCTION

Constitutional review of Acts of Parliament in Belgium is assigned to a special Constitutional Court. The reason for the Court's establishment in 1983 lays in the emergence of the Belgian federal state, which implied the coexistence of federal laws and state laws. Originally, the Court was called the Court of Arbitration to emphasize its limited competences; until 1988, its only mandate was to supervise the division of powers between the federation and the federated entities (called regions and communities). Gradually, the Court evolved into a full Constitutional Court. Crucial to this evolution was the 1988 assignment to the Court of the competence to review the compatibility of statutes to the equality and nondiscrimination clause as laid down in the articles 10 and 11 of the Belgian Constitution. The Court accepts that these articles can be combined with rights laid down in constitutional or international provisions and unwritten legal principles, such as the principle of legal certainty. The legislator has confirmed this extensive interpretation of the Court's competences in 2003. Since then, the Court has power to review statutes against the provisions that allocate competences to the federal state, the regions, and the communities; against all articles in title II of the constitution (on fundamental rights, including articles 10 and 11); and against the articles 170, 172, and 191 of the Constitution (rights concerning taxes and equal protection of foreigners on Belgian territory). In 2007, the former Court of Arbitration was renamed the Constitutional Court.

The following were the National Reports and Papers received by the author for XVIII International Congress of Comparative Law, Washington, DC, July 2010:

ARGENTINA: Alejandra Rodríguez Galán and Alfredo Mauricio Vítolo, “Constitutional Courts as Positive Legislators (Argentina)” (18 pp.).

-Néstor Pedro Sagües, “La Corte Suprema Argentina como legislador positivo” (24 pp.).

AUSTRALIA: Cherryl Saunders, “Interpretation and Review” (54 pp.).

AUSTRIA: Konrad Lachmayer, “Constitutional Courts as Positive Legislators” (13 pp.).

BELGIUM: Patricia Popelier, “L'activité du judge constitutional belge comme législateur” (16 pp.).

BRAZIL: Thomas Bustamante and Evanilda de Godoi Bustamante, “Constitutional Courts as Negative Legislators: The Brazilian Case” (29 pp.).

-Marcelo Figuereido, “Judicial Remedies Aimed to Fill the Legislative Gaps resulting from State Omissions under Brazilian Law” (12 pp.).

-Luis Roberto Barroso, Thiago Magalhães, and Felipe Drummond, “Notas sobre a questão do Legislador Positivo” (47 pp.).

CANADA: Kent Roach, “Constitutional Courts as Positive Legislators: Canada Country Report” (25 pp.).

COLOMBIA: Germán Alfonso López Daza, “Le juge constitutionnel colombien, législateur-cadre positif: un gouvernement des juges” (16 pp.).

-Sandra Morelli, “The Colombian Constitutional Court: from Institutional Leadership, to Conceptual Audacity” (20 pp.).

COSTA RICA: Rubén Hernández Valle, “Las Cortes Constitucitnales como Legisladores positivos” (43 pp.).

CROATIA: Sanja Barić and Petar Bačić, “Constitutional Courts as Positive Legislators. National Report: Croatia” (29 pp).

CZECH REPUBLIC: Zdenek Kühn, “Czech Constitutional Court as Positive Legislator?” (17 pp.).

FRANCE: Bertrand Mathieu, “Le Conseil constitutionnel ‘législateur positif. Ou la question des interventions du juge constitutionnel français dans l'exercise de la function legislative” (18 pp.).

THE SYSTEMS OF JUDICIAL REVIEW AND THE ROLE OF CONSTITUTIONAL COURTS

The result of Kelsen's proposals and their applications in Europe was the development of the concentrated system of judicial review, which attributed specially created constitutional bodies (constitutional courts, tribunals or councils) generally conceived of outside the Judiciary with the power to annul, with erga omnes effects, unconstitutional statutes –this was the initial pattern followed after World War II in Germany, Italy, France, Spain, and Portugal. The system developed as the result of a compromise between the need for a judicial review system derived from the notion of constitutional supremacy and the traditional European idea of the separation of powers, which had denied the courts any power to invalidate statutes.

But in spite of the importance of Kelsen's contributions, it is improper to identify the concentrated system of judicial review as a whole with a so-called “European model,” because there are also concentrated systems of judicial review in which the exclusive and original jurisdiction to annul statutes, without the creation of a special court or tribunal, has fallen to the existing supreme courts of justice, located at the apex of the Judicial Power, as has been the case, since the nineteenth century, in many Latin American countries. In addition, in many Latin American countries, the judicial review system has developed as a mixed system, combining the diffuse and the concentrated methods that function in parallel, as is also the case in Portugal, Greece, and Canada.

INTRODUCTION

The breakdown of communist regimes in Eastern Europe has resulted in the emergence of constitutional courts throughout the region. The introduction of constitutional courts rested on a belief that judiciary is the least dangerous branch of government and on profound distrust in politicians. Such ideas emanated from previous experiences of authoritarian governance and a lack of democratic heritage. The constitution was viewed as a legal act designed to keep politics within boundaries of law, whereas the ideal guardian of constitution was found in an independent judicial authority. In most cases, establishing Kelsenian judicial review created activist courts, which derived legitimacy from their role in democratic transition and from the new democratic constitutional structure. Although this type of strong and centralized judicial review of legislation existed in transitional Serbia as well, there were obvious specificities of both democratic transition and constitutional adjudication that make Serbia a case worthy of detailed exploration.

In contrast to the omnipresent Eastern European narrative, democratic transition in Serbia did not commence immediately after the fall of communism. The transition was not pervasive, but incremental, all while burdened by a multitude of problems. The first postcommunist constitution introduced a multiparty system in 1990; nevertheless, it did not lead to establishment of democracy. Instead, it took a decade of wars and authoritarian rule before democratic revolution ensued in 2000. This did not conclude the problems created by the heritage of dictatorship, as Serbia was only beginning to face new challenges: assassination of the prime minister, a state of emergency, dissolution of federation with Montenegro and secession of Kosovo.

In international comparison, Greek courts recognized the judicial power to review the constitutionality of legislation very early on the basis of constitutional supremacy. However, from the late nineteenth century to the late twentieth century, Greek courts generally deferred to the political branches of government, and in practice, they have rarely challenged legislative or executive acts on constitutional grounds. Situated between the American and the European models, constitutional adjudication in Greece eludes neat definition in terms of both the system of review and its concrete application by the courts. Following an overview on the system of judicial review in Greek constitutional law (see section I), this report examines its concrete application. It focuses on the development of the interplay between judicial self-restraint and judicial activism, in addition to positive legislation through judicial review of the constitutionality of legislation and its limits (see section II).

THE SYSTEM OF JUDICIAL REVIEW

Judicial Organization

The Greek judicial system is divided into functionally different subsystems, each with its own high court. The courts are divided into administrative, civil, and criminal courts (Art. 93 § 1 Const.). The Areios Pagos Court (Áρειος Πάγος) sits at the apex of all civil and criminal courts; the Council of State (∑υμβούλιο της Επικρατείας), modeled on the French Conseil d'État, functions primarily as the supreme administrative court (Art. 95 Const.). The Constitution also provides for a third high court, the Court of Audit (Ελεγκτικό ∑υνέδριο), to which no lower courts correspond, and which has comparatively limited judicial responsibilities.

PRELIMINARY REMARKS

The Subordination of Constitutional Courts to the Constitution

In all democratic countries, constitutional courts have the same role of interpreting and applying the Constitution to preserve its supremacy by testing the constitutionality or conventionality of statutes, and to ensure the prevalence of the democratic principle and of fundamental rights, they even have the role of adapting the Constitution when societal changes and time impose such a task.

This is true in all systems of constitutional judicial review, where a progressive convergence of principles and solutions has consolidated over the past decades. Today it is difficult even to draw clearly the classic distinction between the concentrated and the diffuse systems of judicial review, which were so commonly used during many decades.

In all the systems, the basic principle that can be identified is that constitutional courts, in accomplishing their roles, must always be subordinated to the Constitution, not allowed to invade the field of the Legislator or of the constituent power. The contrary would be, as asserted by Sandra Morelli in the Colombia National Report, to develop an “irresponsible judicial totalitarianism,” which of course is part of the pathology of judicial review.

That is, constitutional courts can assist the legislators in accomplishing their functions, but they cannot substitute for the Legislators and enact legislation – nor do they have any discretionary political basis for creating legal norms or provisions that cannot be deducted from the Constitution itself.

PRELIMINARY REMARKS

It is more than evident that the constitutional court – in the European system – has a considerable impact on the legislative process. The classic separation of powers, based on Montesquieu's model, cannot be considered sufficient to describe the reality or – more accurately – the infrastructure of the modern state of law. Owing to the channeled system of constitutional review, the constitutional court cannot be directly classified as one of the legislative or judicial organs, however broadly understood. Nonetheless, the Kelsenian conception of constitutional justice involves a distinct division between the legislative power and prerogatives of the constitutional court: in this perspective, the constitutional court does introduce some changes to the legislative system, but it acts only as a negative legislator. It is not the competence of the constitutional court to make laws or to bring into the legal order any normative elements, which have not been established before under an appropriate legislative procedure; therefore, the constitutional court may not replace the legislator in this process. Constitutional review is based on a coherent structure of a hierarchical legal system, and the constitutional court has to operate within that order, drawing its own competence from the constitutional legislator. Judgments passed by the constitutional court cannot contain anything that has not been already proclaimed by the supreme norm laid down in the Constitution, whereas the role of the constitutional review is always limited to the application of law – although placed at the highest level of the normative hierarchy – and cannot involve creation of norms.