Title VIII, Chapter I, of the Venezuelan Constitution of 1999 is named “Guarantee of this Constitution.” As stated in the Preliminary Recitals of said Fundamental Text, said Chapter sets forth the main dispositions of constitutional justice as a jurisdictional mechanism for guaranteeing the supremacy and normative force principles of the Constitution, which are also stated in article 7 of the Constitution of 1999.

Constitutional justice is exercised in Venezuela through different mechanisms that complement one another. On the one hand, the Constitution assigns to every judge, in the scope of his or her corresponding competencies, the obligation to “assure the integrity of the Constitution” (article 334 of the Constitution). This obligation must be complied with by all judges of the Republic in different ways: (i) in the course of the actions and processes that they must hear according to their competency; (ii) by the hearing of amparo actions for the protection of fundamental rights and guarantees; and (iii) through the diffuse control of the constitutionality, under which “in case of incompatibility between this Constitution and a statute or any other legal norm, the constitutional dispositions will be applicable,” leaving without effect, for this specific case, the application of the norm contrary to the Constitution, even if the same is made ex officio.

On the other hand, Venezuelan constitutional justice, which has been qualified as a mixed or integral system, also includes the concentrated control of the constitutionality of the acts and omissions of the Public Power with rank of law.

TYPOLOGY OF FAVORABLE LEGAL REVIEW RESOLUTIONS

It is possible to individualize an ample typology of favorable resolutions in constitutional proceedings directed to exercise a posteriori control over the legal review of the laws: (a) exhortative; (b) simple unconstitutionality; (c) interpretative; (d) inapplicable; and (e) normative. Each category is in turn divided into subcategories, as we will see below.

Favorable Exhortative Resolutions

Favorable exhortative resolutions are a technique exclusively used when control is exercised over laws. They are characterized by the fact that the constitutional judge, after establishing that a specific legal provision violates the Constitution, instead of declaring its nullity, grants a specific term to the legislators for its amendment instead of just removing the portion thereof that is incompatible with the political Constitution.

In practice, the efficacy of this is doubtful, because parliaments do not always abide by the recommendations of constitutional judges, which led the jurisprudence of the Italian Corte Costituzionale to create the procedural technique of the doppia pronuncia. In accordance with this technique, legislators are advised in a first resolution that, should they fail to enforce the recommendations contained within the term granted for the purpose, a second resolution will be issued to declare the unconstitutionality of the challenged provision.

There is then a doppia pronuncia, that is, a conditioned dismissal resolution, plus a favorable resolution if the legislators fail to comply with the warning contained in the resolution, because, to a certain extent, the first resolution establishes guidelines and directions to be followed by the Legislator on how to regulate a specific matter in accordance with the constitutional law.

ANTECEDENTS OF CONSTITUTIONAL ADJUDICATION

Before the political transition, no institution could emerge for the protection of the Constitution, given the nature of the ancien régime. However, the general refusal of constitutional jurisdiction was not unanimous in legal literature; from the mid-960s, several authors have suggested setting up an institution to grant remedies for any violation of the Constitution. In the history of Hungarian public law, there has been no institution performing the classical functions of constitutional jurisprudence. The Constitution of 1949, a break from the traditions of European and Hungarian constitutional development, terminated the public institutions performing similar functions to a constitutional court (e.g., Canvassing Court, Administrative Court).

The revolution of 1956 eliminated the former organizations of dictatorship, but it had no time to create the conditions of constitutionalism. Within the frameworks of the political system, the constitutional revision of 1972 emphasized the necessity of the protection of the Constitution, and the idea of a parliamentary committee arose, controlling constitutionalism. However, politicians had found the institution suspicious until the middle of the 1980s, when the idea of establishing an organ, formally separate from Parliament, emerged to institutionalize “efficient” protection of the Constitution. This organ was the Constitutional Council. The adoption of the law in 1983 was a new and significant step toward fostering constitutional protection, even though it could not act as real protector in the political atmosphere. First, because the majority of its members were elected by, and responsible to the Parliament, which could recall them any time.

As aforementioned, one of the most important contemporary trends in the transformation of judicial review of legislation, particularly in concentrated systems, has been the development of the possibility for constitutional courts to exercise their power to control the constitutionality of statutes, interpreting them according to the Constitution without being obliged to decide on the nullity of the unconstitutional provisions.

The same sort of control is also exercised regarding the constitutionality of the conduct of the Legislator, not related to statutes duly enacted, but regarding the absence of such statutes or the omissions the statutes contain when the Legislator does not comply with its constitutional obligation to legislate on specific matters or when the Legislator has passed legislation it in an incomplete or discriminatory way. It is important to highlight in all these cases that judicial review decisions adopted by constitutional courts are issued completely separate from the need to annul existing statues, as it is impossible in these cases to characterize the constitutional courts as negative legislators. On the contrary, in many of these cases, constitutional courts act openly as positive legislators, often with the possibility to issue declarations of unconstitutionality of certain legal provisions without annulling them. In some ways, this is similar to what occurs in diffuse systems of judicial review, where the courts have no power at all to annul statutes.

Two sorts of legislative omissions can generally be distinguished: absolute and relative omissions.

PRELIMINARY CONSIDERATIONS

With regard to the risks and dysfunctions that could have derived from the recognition of the power of control and custody of the supremacy of the Constitution to a judicial body that would be responsible for issuing legal rulings regarding the constitutionality of the law, and whose most paradigmatic exponent was Hans Kelsen, much had to be thought both by authors as well as by statesmen, responsible for its implementation. Put another way, the practice of the constitutional courts, with their excesses and shortcomings, should not surprise us or even result in abandonment of this institutional scheme to make way to schools of thought and political currents that consider the Constitution merely a political decision – yes, a fundamental one, according to Carl Schmit – but, in consequence, dependent on the deciderata of the majority. The control of constitutionality is not, in that perspective, anything more than political power.

In the United States, the constituents of Philadelphia in 1787, having not decided on the control of constitutionality, did delve into the intangible character of the Constitution, which without a doubt is assumed to be the fundamental decision of the Federation. This was precisely what made it possible for Supreme Court Justice Marshall, in the case Marbury v. Madison, to rule that the Supreme Court was entitled to refrain from applying laws contrary to the constitutional text.

Constitutional courts, being constitutional organs leading with constitutional questions, in many cases interfere not with the ordinary Legislator, but with the constitutional legislator, that is with the constituent power, by enacting constitutional rules when resolving constitutional disputes between state organs or even by legitimately making changes to a constitution by means of adapting its provisions and giving them concrete meaning.

CONSTITUTIONAL COURTS' RESOLUTION OF DISPUTES OF CONSTITUTIONAL RANK AND ENACTMENT OF CONSTITUTIONAL RULES

The principle of the supremacy of the Constitution, particularly regarding rigid Constitutions, implies that the Constitution and all constitutional rules can be enacted only by the constituent powers established and regulated in the same constitution. This constituent power can be the people, directly expressing their will (e.g., by means of a referendum) or an organ of the “State acting as a derived constituent power. The consequence is that no constituted power of the State by itself can enact constitutional rules, except when expressly authorized by a constitution to participate in a constitution-making process.

Nonetheless, in contemporary constitutional law, there are cases in which constitutions authorize, exceptionally and indirectly, organs of the State to enact constitutional rules. For instance, this is the case of parliaments when the constitution has authorized them to enact laws with constitutional rank (i.e., constitutional laws). In other cases, constitutions expressly authorize constitutional courts to enact constitutional rules when deciding conflicts regarding attributions of State organs, for instance on matters of political decentralization.

1. A study of cases on the – manipulative, additive, integrative, “creative” – decisions by which the Italian Constitutional Court, in the current jurisprudential practice, poses as a positive legislator requires certain introductory remarks on the typology of the constitutional decisions and, before that, some outlines of the model of control of constitutionality operating in Italy, with particular regard to the proceeding in an incidental way.

Although, especially on the morrow of the constitutional revision of 2001 that reformed the Italian regional system, the procedure in the direct way – on state appeal, for control of regional laws; on regional initiative, for control of the legislative acts of the State and other Regions (art. 127 of the Constitution) – recorded a considerable quantitative increase, on these pages, it is opportune to limit oneself to judgment in an incidental manner (incidenter proceeding).

Indeed, the latter makes up the seat of control of the constitutionality of laws in a general way – any legislative act may be its subject, and any constitutional provision may make up the parameter – and in that context, the typology of constitutional decisions was historically and overridingly elaborated, starting from the interpretative and manipulative ones (and likewise monitory, or of address, with which the Court directs warnings to the legislator, in an almost advisory key).

INTRODUCTION

With respect to constitutional fundamental rights review by the judiciary, the Netherlands has always been a bit of a stranger in Europe. Comparatists usually describe the way judicial review of statutes in Europe is shaped as different from the American system, where the Supreme Court has basically empowered itself to review the constitutionality of statutory laws. The authority to strike down legislation in the New World is therefore exercised by the judiciary at large, and it is the highest appellate court that ultimately decides on the matter. By contrast, the European tradition is closely connected to the existence of Kelsenian constitutional courts specialized in reviewing the constitutionality of statutes and executive action. Such courts notably exist in, for instance, Germany, Italy, Austria, Spain, and Belgium but also in the relatively younger liberal democracies like Poland and the Czech Republic. Constitutional courts almost by definition engage in a critical dialogue with the national legislature. When Hans Kelsen famously described constitutional courts as negative legislators, he was referring to their power to annul acts of the legislature.

It is at this point that the Dutch differ from most of their European neighbors. Their legal system does not involve concentrated review by a specialized constitutional court. This is largely because judicial review of primary legislation is traditionally prohibited pursuant to Article 120 of the Dutch Constitution. It is clear from the outset that this ban on judicial review reduces the need for a specialized court.

INTRODUCTION

Courts as Legislators in General

This report examines the legal situation in Switzerland in view of an international comparative law study on constitutional courts as positive legislators.

One speaks of a judge or court as a legislator whenever no legislative rule exists for a question arising within the scope of court proceedings. In such cases, the court must close the gap in the law. Pursuant to Article 1, paragraph 2, of the Swiss Civil Code, in such cases “the judge shall decide according to customary law and, in the absence of such customary law, according to the rule he would establish as a legislator.”

The power, or even the obligation, to close the gap – which is available to all courts – results from the prohibition against the denial of justice. Although the provision of law is set out in the Civil Code, it applies to all areas of law; Article 1, paragraph 2, of the Civil Code reflects a general principle of law.

A gap may result because a problem was not recognized in connection with the adoption of the provision and, for that reason, was not regulated (original gap), or because the need for the regulation did not arise until after the provision was adopted (subsequent gap). No gap in the law exists in the case of qualified silence in the statute, that is, when a rule has been intentionally omitted.

The Court responsible for the review of constitutional questions in the Federal Republic of Germany is the Bundesverfassungsgericht (BVerfG), situated in Karlsruhe. It is mentioned in article 92 of the German Constitution, called Grundgesetz (Basic Law – GG). Article 93 GG contains the catalog of jurisdiction, and Article 94 GG regulates its composition. The Bundesverfassungsgericht consists of federal judges and other members; the members of the Bundesverfassungsgericht are elected half by Parliament (Bundestag) and half by the Bundesrat (German Federal Council). The judges are not allowed to be members of the Bundestag, the Bundesrat, the government, or corresponding institutions at the Federal-State level.

As a court, the Bundesverfassungsgericht is part of the judiciary, but nevertheless the Constitutional Legislator grants the Bundesverfassungsgericht an accentuated position. It is mentioned in Article 92 GG as prior to all other courts, and Article 93 f. GG comprehends further detailed specifications. The main function of the Bundesverfassungsgericht is to ensure and to enforce Constitutional Law against the bodies of sovereign power. In literature, the Bundesverfassungsgericht is called Hüter der Verfassung (guardian of the Constitution).

Beyond this, the Bundesverfassungsgericht is a constitutional body like the Bundestag, the Bundesrat, and the Federal Government. Therefore, the Bundesverfassungsgericht has autonomy to create bylaw, it is not seated by a ministry, it is not under supervision, and it establishes its budget on its own.

Because of its specific position, critical voices have arisen in the literature. In their opinion, the Bundesverfassungsgericht interpreted its jurisdiction by itself and thus broke the mold of the prevalent system of “checks and balances in a democracy.”

INTRODUCTION

1.– La présente contribution vise à rendre compte des principaux éléments d'un projet de recherche que nous avons pu mener à terme récemment et qui nous a valu le grand honneur de recevoir le Prix de thèse du Groupement européen du droit public.

2.– Le contrôle de la constitutionnalité des lois, dans sa forme “européenne,” concentrée dans les mains d'une juridiction constitutionnelle spécialisée, a déjà fait l'objet de très nombreux travaux et études. Ce n'est pas l'objet ici de les répertorier; leur nombre est à ce point important que même une bibliographie sélective, limitée aux ordres juridiques belge, français et allemand, dépasse aisément plusieurs milliers de contributions.

En analysant le concept du ‘contrôle de la constitutionnalité des lois’, la doctrine s'est ainsi intéressée à la différence qui existe entre la non-conformité totale et partielle d'une norme législative, elle a analysé le problème des effets dans le temps d'une invalidation, qui peut opérer ex nunc ou ex tunc, et elle a examiné la question de savoir si une norme législative, lorsqu'elle est invalidée, est ou non séparable du texte dont elle faisait partie. Par ailleurs, il a été relevé que la constatation formelle qu'une norme législative est contraire à la Constitution ne signifie pas nécessairement que cette norme peut être invalidée. Là où l'invalidation est possible, la doctrine a décrit les tensions qui existent entre une disparition ab initio de la norme et le principe de confiance légitime.

BRIEF DESCRIPTION OF THE JUDICIAL REVIEW METHOD APPLIED IN PORTUGAL

The most important aspect of the Portuguese system of control of the constitutionality of legal norms is the fact that, according to Article 204 of Portuguese Constitution, “in matters brought before them for decision, the courts shall not apply any rules that contravene the provisions of this Constitution or the principles contained there.”

Every court (judicial, administrative, and fiscal) is vested with jurisdiction to review complaints involving violation of the Constitution. Moreover, every single judge is, in itself, a sort of constitutional court, as he or she must control the constitutionality of the rules that are applicable to the matters that are brought before the judge. If the judge thinks that those rules contravene the provisions of the Constitution, then he or she must refuse to apply them. However, the decisions in constitutional issues of other courts are not definitive, as there is always the possibility to appeal to the Constitutional Court.

The Constitutional Court is the only authority vested with ultimate jurisdiction to review of constitutionality, so that Article 221 of the Portuguese Constitution states: “The Constitutional Court is the court that has the specific power to administer justice in matters involving questions of legal and constitutional nature.”

It must be mentioned that Portugal does not have mechanisms like the German Verfassunsgsbeschwerde or the Spanish recurso de amparo.

INTRODUCTION AND TERMINOLOGY

Particularly English lawyers have problems with the terminology of constitution and constitutional judge. It is perhaps symptomatic that in a major reflective work on the British Constitution in the twentieth century, the editor's introduction does not discuss the courts at all and the writer of the report on the courts focuses on the “Government and the Judiciary” and begins by saying, “For much of the twentieth century the judiciary has been thought of more as a dignified than an effective element in the constitution.”

Constitution: There is a British Constitution, even though it does not consist of a single consistent and overarching document. Trevor Allan talks of a “common law constitution” as a set of legal principles and rules which have been laid down from time to time, typically by judges. In addition and of increasing importance are statutes. There is no procedural or formal distinction between a “constitutional” statute and an ordinary statute. For example, the Constitutional Reform Act 2005 was passed by exactly the same procedure as any other public and general statute, despite its acknowledged constitutional importance. In these respects, the British Constitution is now unusual, but it has very similar features to the French Third Republic (1870–1940), which was the longest lasting of the fifteen French constitutions to date.

The result of these features is that the very label “constitutional” attached to a legal rule or principle can be controversial.

En se prononçant sur les effets dans le temps ou la portée matérielle d'une invalidation de la loi, en fixant par voie de directives la manière dont une loi doit être interprétée, appliquée, ou en fixant un cadre à l'intervention du législateur ad futuram, le juge constitutionnel intervient dans la perfection de l'œuvre législative.

Le terme de «législateur positif» renvoie à cette intervention.

Notre propos n'est pas ici de prendre position sur la question de la fonction normative du juge et son articulation avec la fonction normative du législateur et de l'autorité gouvernementale d'un point de vue théorique. Alors même que la distinction entre le pouvoir juridictionnel et le pouvoir politique nous semble devoir être l'axe majeur de la répartition des pouvoirs, nous estimions qu'il existe entre la fonction législative et la fonction juridictionnelle une différence de nature que «l'appétit» des organes juridictionnels tend à brouiller. En réalité, la relative faiblesse des organes législatifs, les pathologies de la loi, la crise de la légitimité politique, et donc démocratique, la place acquise par les droits fondamentaux, la perméabilité entre les ordres juridiques, tant nationaux que supra juridiques, nourrissent la constitution de l'empire juridictionnel.

II n'en reste pas moins que l'idée de séparation absolue des fonctions ne résiste pas à la réalité et que la question est celle de la mesure.

Au delà de ces observations assez triviales et au deçà d'une position doctrinale dogmatique, l'objet de cette étude est de décrire la manière dont, en France, le Conseil constitutionnel intervient dans l'exercice de la fonction législative à l'occasion du jugement porté sur la constitutionnalité de la loi.

INTRODUCTION

From a material point of view, the Mexican Supreme Court of Justice of the Nation (hereinafter, SC) has evolved from an appeals court into a constitutional court, specifically since the constitutional reform of December 31, 1994. From that date, its composition decreased from twenty-six to eleven Justices, and it was empowered to pronounce the invalidity of norms with future erga omnes effects through two mechanisms: the abstract unconstitutionality cause of action and constitutional controversies.

These powers are exclusive to the SC. As such, the best doctrine has considered it a real constitutional court, although it still presides over matters inherent to a legality court, as it is at the top of the federal judicial branch. Because of its dual duties (constitutional and legal), it has been deemed that the system controlling constitutionality in Mexico has a mixed nature, to the extent that it has European or centralized control features and some aspects of the diffuse or American system, as the SC also presides over amparo proceedings (on review), in which it may declare only the inapplicability of an unconstitutional norm to a specific case.

The full exercise of these constitutional powers has led the SC to evolve the type of decisions it issues. In this manner, it has left behind the conceptualization of the famous Viennese jurist Kelsen because it has ceased to be a simple negative legislator, having progressed to what may be considered a true positive legislator in line with certain evolving constitutional court trends.

INTRODUCTION

The comparison between the negative and positive roles of constitutional courts provides an interesting perspective on the nature of judicial review and judicial activism in a particular country. Decisions in which courts explicitly require governments to take positive steps either to comply with the Constitution or to provide remedies for constitutional violations are examples of judicial activism in the sense that the unelected judiciary require elected legislatures and governments to act. That said, the more traditional role of judges as negative legislators with powers to invalidate unconstitutional laws and actions may effectively require positive government regulation to be enacted in response. In the modern world, it may not be acceptable for courts acting as a negative legislator to have the final word, and the negative remedies of courts may invoke positive legislative responses from governments. Hence, the distinction between courts acting in a negative or positive fashion may be less clear than when first articulated by Kelsen. This more nuanced understanding of the role of the court as a positive legislator is of particular importance in Canada because of work that has demonstrated frequent legislative replies to Supreme Court of Canada decisions that have simply invalidated legislation as inconsistent with the Canada's constitutional bill of rights, the Canadian Charter of Rights and Freedoms.

This chapter starts with a brief description of the system of judicial review under the Canadian Constitution.

At the beginning of the twentiest century, Hans Kelsen, in his very well-known article “La garantie juridictionnelle de la constitution (La justice constitutionnelle),” published in 1928, in the Revue du droit public et de la science politique en France et a l'étranger, began to write for non-German-speaking readers about constitutional courts as “negative legislators.” As Kelsen was one of the most important constructors of modern public law of the twentieth century, it is indeed impossible to write about the opposite assertion – on constitutional courts as positive legislators – without referring to his thoughts on the matter.

In his article, while sharing his experience on the establishment and functioning of the Constitutional Court of Austria in 1920, conceived of as an important part of the concentrated system of judicial review that he had introduced for the first time in Europe, Kelsen began to explain the role of such constitutional organs established outside of the judicial branch of government, but with jurisdictional powers to annul statutes they deemed unconstitutional.

The Austrian system, which was established the same year as that in Czechoslovakia, according to Kelsen's own ideas, sharply contrasted with, at that time, the already well-established and well-developed diffuse system of judicial review adopted in the United States, where for more than a century, courts and the Supreme Court had already developed a very active role as constitutional judges.

The Argentine Constitution was enacted in 1853, and the country's founding fathers drafted it essentially along the lines of the American Constitution. Like its model, it provides for a strict separation of powers between the three branches of government, the Executive, Legislative, and Judiciary. In the matter at stake, it vests the legislative power of the Nation in a bicameral Congress, and it grants to the Judiciary, formed by a Supreme Court and those inferior tribunals as Congress may establish, the power to “to hear and decide all cases arising under the Constitution and the laws of the Nation.” On the basis of this clause, it has been held that courts are not allowed to render any decision or opinion outside the boundaries of a specific case.

According to the Constitution, the Argentine Supreme Court has limited original jurisdiction in cases involving the Provinces, foreign ministers, and other diplomats, whereas its appellate jurisdiction is regulated by law within the constitutional boundaries of federal jurisdiction.

Since its inception in 1862, the Argentine Supreme Court, following U.S. Supreme Court Justice John Marshall's reasoning in Marbury v. Madison, has adopted the American model of judicial review, according to which all courts, federal or provincial and of all levels, have the right to declare an act of Congress, or an action of the Executive, unconstitutional and therefore inapplicable in the case at stake.

Leaving aside the relation between constitutional courts and the constituent power, the most important and common role of constitutional courts has been developed with respect to legislation, controlling its submission to the Constitution. This role is performed by the courts, not only acting as the traditional “negative” Legislator but also as a jurisdictional organ of the State designed to complement or assist legislative organs in their main function of establishing legal rules.

This role has been assumed by the courts since the initial conception of the diffuse system of judicial review in the United States, deciding not to apply statutes when considered contrary to the Constitution, thus giving preference to the latter; or in the concentrated system of judicial review, which has extended throughout the world during the last century, in which constitutional courts have the power to annul unconstitutional statutes. In all systems, in accomplishing their functions, constitutional courts have always, in some way, assisted the Legislator. At the beginning, in a limited manner, they provided only for the nullity or inapplicability of statutes declared contrary to a Constitution; subsequently, they broadly interpreted the Constitution, and the statutes in conformity with it, giving directives or guidelines to the Legislator to correct the legislative defects.

CONSTITUTIONAL COURTS' INTERPRETATION OF STATUTES IN HARMONY WITH THE CONSTITUTION

During the past decades, given the increasing role of constitutional courts not only as the guarantors of the supremacy of a constitution but also as its supreme interpreter through decisions with binding effects on courts, public officials, and citizens, courts have move beyond their initial role as negative legislators, ruled by the traditional unconstitutionality and invalidity-nullity dichotomy.

THE CONSTITUTIONAL COURTOF THE REPUBLIC OF CROATIA: COMPOSITION, COMPETENCES, AND PROCEEDINGS

Introduction

Croatia had its Constitutional Court when it still formed part of the former Socialist Federal Republic of Yugoslavia. Constitutional Courts were established both on the federal level and as federal units. The Croatian Constitutional Court had been established by the 1963 Constitution, and it was retained by the later 1974 Constitution. Its primary competence was abstract norm control, and it examined the constitutionality and legality of self-governing general acts. Given the socialist ideology on the supremacy of the elected assembly, if the Court found a law to be contrary to the Constitution, it could not repeal the law. It could only declare its inconformity, and the Assembly would have six months to enact new legislation. It was not competent to decide on the constitutionality and legality of individual acts. The first democratic Constitution of the Republic of Croatia (hereinafter, the Constitution), promulgated on December 22, 1990, in its Basic Provisions, article 3, states, “[F]reedom, equal rights, national equality, commitment to peace, social justice, respect for human rights, inviolability of ownership, conservation of nature and the human environment, the rule of law, and a democratic multiparty system are the highest values of the constitutional order of the Republic of Croatia.” The whole system of the Republic of Croatia has been organized accordingly, including the constitutional position of the Constitutional Court.