Article

Constitutional Review in New Democracies

Abstract

The establishment of a judiciary with the power of constitutional review—determining whether government actions comply with the constitution’s provisions—is now considered a standard component of a democracy. It is increasingly common to entrust the power of constitutional review to a specialised constitutional court that can issue authoritative decisions on the constitutionality of laws and government actions and can interpret the constitution’s provisions. A constitutional court can play many important roles, including reviewing the constitutionality of legislation, protecting individual rights, providing a forum for the resolution of disputes in a federal system, enforcing the separation of powers, certifying election results, and assessing the legality of political parties. Establishing a court with the power to review the constitutionality of laws and government actions provides political parties and groups with a form of “insurance” for future scenarios in which they may not be in government and want to make sure that a government formed by their opponents acts within the limits of the constitution. A constitutional court is a means of institutionalising the commitment made by all parties when drafting the constitution to abide by its provisions. Furthermore, foreign investors often regard an independent and well-functioning judiciary as a sign of a country’s stability and investment potential. There are many options in designing a constitutional court, yet some recommendations can be made on a number of key design questions: the relationship between ordinary courts and constitutional court; court membership; jurisdiction; access; and remedies.
EXECUTIVE SUMMARY
The establishment of a judiciary with the power of
constitutional review determining whether government
actions comply with the constitution’s provisions — is now
considered a standard component of a democracy. It is
increasingly common to entrust the power of constitutional
review to a specialised constitutional court that can issue
authoritative decisions on the constitutionality of laws and
government actions and can interpret the constitution’s
provisions.
A constitutional court can play many important roles,
including reviewing the constitutionality of legislation,
protecting individual rights, providing a forum for the
resolution of disputes in a federal system, enforcing the
separation of powers, certifying election results, and
assessing the legality of political parties.
Establishing a court with the power to review the
constitutionality of laws and government actions provides
political parties and groups with a form of “insurance” for
future scenarios in which they may not be in government and
want to make sure that a government formed by their
opponents acts within the limits of the constitution. A
constitutional court is a means of institutionalising the
commitment made by all parties when drafting the
constitution to abide by its provisions. Furthermore, foreign
investors often regard an independent and well-functioning
judiciary as a sign of a country’s stability and investment
potential. There are many options in designing a
constitutional court, yet some recommendations can be made
on a number of key design questions:
1 This Briefing Paper was written by Katherine Glenn Bass and Sujit
Choudhry from the Center for Constitutional Transitions at NYU Law. It was
edited by Michael Meyer-Resende and Duncan Pickard of Democracy
Reporting International.
1. Relationship between ordinary courts and constitutional
court: Ordinary courts should be allowed to engage in
limited review of constitutional questions that arise in
the course of cases before them. This review may be
limited to ensuring that statutes are applied in a
constitutional manner. Alternatively, if ordinary courts
can consider challenges to statutes, they may be subject
to later review of their decisions by the constitutional
court. Either option promotes judicial efficiency by
eliminating the need for ordinary courts to halt
proceedings while they consider constitutional issues.
2. Court membership: Judges should be protected from
undue political pressure. An appointment procedure that
involves many different political actors, rules that strictly
define the causes for which a judge may be removed and
the procedure for removal, judicial qualifications based
on merit and expertise, and non-renewable terms for
judges can all help to foster judicial independence.
3. Jurisdiction: A constitutional court should have
jurisdiction over all matters that involve a constitutional
question. While granting a constitutional court broad
jurisdiction allows the court to exert substantial
influence over a country’s politics, restricting the court’s
jurisdiction in a way that declares any area of
constitutional law “off-limits” is incompatible with the
court’s role as the final arbiter of the law.
4. Access: The question of whether individual citizens will
be able to petition the court is perhaps the most pressing
design question related to access to the constitutional
court. Petitions from citizens may foster stronger public
support for the court, but may also significantly increase
the court’s workload. Barring citizens from petitioning the
court is likely to reduce the number of cases involving
violations of constitutional rights that come before the
court, which may in turn result in weaker enforcement of
constitutional rights.
5. Remedies: A constitutional court must have the power to
grant remedies for constitutional violations that can
address a wide range of situations, and that have a real
impact; for example, the power to issue injunctions
compelling a government actor to take action, or to
refrain from acting, in a particular matter.
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BRIEFING PAPER 40
SEPTEMBER 2013
CONSTITUTIONAL REVIEW
IN NEW DEMOCRACIES1
2
1. ESTABLISHING CONSTITUTIONAL
REVIEW IN TRANSITIONS TO
DEMOCRACY
During processes of democratic transition, political actors
negotiate the terms of the new democracy and formalise
those terms in a written constitution. The new democracy will
face the pressing question of how to enforce that constitution.
After World War II, it has become standard practice to entrust
the judiciary with the responsibility of interpreting the
constitution and determining whether government decisions
and actions are constitutional. The UN High Commissioner for
Human Rights and the Independent Expert on the promotion
of a democratic and equitable international order have both
noted the importance of establishing constitutional review.2
Careful thought must be given to the design of the mechanism
for judicial enforcement. There is a clear trend towards
establishing a new constitutional court to interpret the
constitution. This Briefing Paper presents an overview of the
basic design questions that policymakers will have to address
when constructing a constitutional court. These include: the
court’s membership; the process for selecting the court’s
judges and the mechanism for removing judges; the court’s
jurisdiction; access to the court; forms of review; and judicial
remedies in response to constitutional violations.
1.1. SYSTEMS OF CONSTITUTIONAL REVIEW:
CENTRALISED VERSUS DIFFUSE
Constitutional review can take two forms: centralised or
diffuse.
In a centralised system, the model used by most European
countries, including France, Germany and Italy, a dedicated
body a constitutional court or a constitutional council is
the only state organ granted the power to make authoritative
determinations on the constitutionality of a law or
government action. When constitutional questions arise in
cases before lower courts, they are referred to the
constitutional court for adjudication.
Diffuse or decentralised constitutional review, the model used
in the United States, grants all courts in the judiciary the
power of constitutional review. A supreme court is the highest
court in the country, and it addresses questions of
constitutionality when they arise in cases appealed from
lower courts. The supreme court also hears non-
constitutional cases brought on appeal from lower courts.
2 Hungary must revoke worrying constitutional changes Pillay, UN Office of the
High Commissioner for Human Rights, 18 June 2013,
http://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=13464
&LangID=E; Report of the Independent Expert on the promotion of a democratic
and equitable international order, UN Human Rights Council, A/HRC/24/38, 1 July
2013, para. 44, http://www.ohchr.org/Documents/Issues/IntOrder/A -HRC-24-
38_en.pdf.
1.2. WHY ESTABLISH CENTRALISED
CONSTITUTIONAL REVIEW
Opting for centralised constitutional review with a
constitutional court offers several advantages over a system
of diffuse constitutional review. First, a specialised
constitutional court is well suited for integration into a civil
law system, which generally includes specialised courts in
other areas (civil and criminal law, administrative law, etc.). A
constitutional court also offers a relatively quick and
definitive method of determining the constitutional validity of
laws and decrees. In a decentralised system, by contrast,
multiple courts may issue decisions regarding a law’s validity,
and these decisions may conflict with each other. Only after
cases have worked their way through the judicial system to
the country’s highest courts will there be a degree of
certainty, when appellate courts or the supreme court make a
determination. A constitutional court, in contrast, is
designated as the only government institution that can
conduct constitutional review, and its decisions will then be
followed by the rest of the judiciary. Furthermore, in systems
in which the constitutional court can be accessed without
first having to approach the lower courts (see section 6), the
constitutional court can issue a decision more quickly than is
possible in a decentralised system.3
Another argument in support of creating a specialised
constitutional court centres on the nature of the cases such a
court will hear. As discussed below (section 5), disputes over
the constitution’s provisions often involve the most sensitive
political issues facing a country, including review of the
country’s electoral laws and elections, the powers of the
various branches of government and other questions.
Decisions on these issues will have a major impact on the
country’s politics. Some scholars argue that because of the
political nature of constitutional cases, it is best to create a
specialised body so that the judges on that body can develop
expertise in the area of constitutional jurisprudence and
insulate the rest of the judiciary from politicisation.4
Many countries have established a new constitutional court
when in transition from an authoritarian regime to a
democratic system. Constitutional courts present several
advantages in this scenario. First, establishing a specialist
court charged with interpreting the constitution and ensuring
its primacy signals the country is committed to the rule of law
and is making a clear break with its authoritarian past. The
court bears a special responsibility for ensuring that the
constitution is applied fairly and equally to all members of
society, no matter how powerful. Second, the ordinary
judiciary might be suspect given its function under the former
regime. Policymakers may feel more comfortable entrusting
the power of constitutional review to a new institution whose
members are selected by democratic representatives (see
section 3). This rationale motivated, in part, the creation of
the German Federal Constitutional Court (FCC) after World
3 Victor Ferreres Comella,
The rise of specialised constitutional courts
, in
Comparative Constitutional Law
(Ginsburg and Dixon, eds.) (Elgar, 2011), p. 268.
4 Ferreres Comella,
ibid
., p. 269.
3
War II and the creation of the Spanish Constitutional Court
after the fall of General Franco.
Establishing a court with the power to review the
constitutionality of laws and government actions also
provides political parties with a form of “insurance” for future
scenarios in which they may not be in government and want to
make sure that a government formed by their opponents acts
within the limits of the constitution. A constitutional court is a
means of institutionalising the commitment made by all
parties when drafting the constitution to abide by its
provisions.5 For example, when Italy’s Constitutional
Assembly debated the question of creating a new
Constitutional Court in 1946, the political parties that
expected to find themselves in the opposition after
parliamentary elections were strong supporters of the Court,
in part because they saw the Court as a way to hold the ruling
party to account.6
Furthermore, foreign investors often regard an independent
and well-functioning judiciary as a sign of a country’s stability
and investment potential. For example, in Egypt, President
Anwar Sadat established the Supreme Constitutional Court in
part to demonstrate to investors that the country was
committed to the enforcement of property rights.7
1.3. RELATIONSHIP BETWEEN CONSTITUTIONAL
COURTS AND OTHER COURTS
The formation of a new constitutional court can create
conflicts with other courts in the judicial system. In particular,
it is likely that a constitutional court and the higher courts will
clash regarding the jurisdictional “territory” of each court.
These tensions can arise in both common and civil law
systems: in common law systems, between the constitutional
court and the supreme court; in civil law systems, between
the constitutional court and the courts of last resort of each
specialised division (which we term “supreme courts”).
Furthermore, constitutional courts that are set up as part of a
transition to democracy may include judges who are more
invested in the new democratic order than the judges
comprising the rest of the judiciary; the constitutional court’s
judgments consequently may reflect better the aspirations of
the new constitutional era than ordinary courts.8
Given the complexity of many legal disputes, it is impossible
to achieve a perfect separation between the competence of
the constitutional court and that of the ordinary courts. Nor is
such a separation necessarily desirable, since the norms
enshrined in the constitution are intended to pervade a
country’s entire system of government, rather than being
confined to one particular institution.9
5 See Tom Ginsburg,
Constitutional Courts in East Asia: Understanding Variation
,
in
Constitutional Courts: A Comparative Study
(Harding and Leyland, eds) (Wildy,
Simmons & Hill, 2009).
6 Mary Volcansek,
Constitutional Politics in Italy
(Macmillan, 2000), p. 16-17.
7 Tamir Moustafa,
The Struggle for Constitutional Power
(Cambridge, 2007), p. 4-
6.
8 Ferreres Comella,
ibid
., p. 274.
9 Frank Michelman,
The interplay of constitutional and ordinary jurisdiction
, in
Comparative Constitutional Law
(Ginsburg and Dixon, eds.) (Elgar, 2011), p. 279.
Policymakers should consider the following questions when
designing a constitutional court and clarifying its relationship
to other courts:
Will ordinary courts (lower courts and supreme
courts) have the power to issue opinions regarding a
law or executive action’s constitutionality? During
the early years of operation of the German Federal
Constitutional Court (FCC), the FCC and Germany’s
supreme courts repeatedly clashed over whether the
supreme courts could make such judgments when a
lower court referred a constitutional question to the
FCC (the referral had to go through the relevant
supreme court before reaching the FCC). The conflict
was resolved when Germany’s parliament amended
the Federal Constitutional Court Act (FCC Act) in a
way that eliminated the role of supreme courts in the
process of referring a question to the FCC. The FCC
may request an opinion on a matter’s
constitutionality from a supreme court if it chooses,
however (FCC Act, Art. 82).10
Will ordinary courts (lower courts and supreme
courts) have the power to strike down a statute, or
will the constitutional court be the sole court with
this power? Portugal allows ordinary courts to set
aside statutes as unconstitutional on their own
authority, with the possibility of appeal to the
Constitutional Court (Constitution of Portugal Art.
280).11
Must the constitutional court rely on supreme
courts’ interpretations of statutes? Requiring the
constitutional court to do so may reduce friction
between it and supreme courts. Italy’s Constitutional
Court has developed an informal practice of relying
on the interpretations of statutes made by the Court
of Cassation, while reserving the right to determine
whether those interpretations fall within the limits of
the constitution.12
One proposal to structure the relationship between
constitutional courts and ordinary courts is to allow ordinary
courts to engage in review of constitutional questions that
arise in the course of cases before them, subject to later
review by the constitutional court. Under this proposal,
findings by lower courts that an executive or legislative action
is unconstitutional are not implemented until the
constitutional court has reviewed and approved the judgment.
An administrative benefit of this proposal is that lower courts
do not have to halt proceedings each time a constitutional
question arises and await the constitutional court’s review of
the matter.13 South Africa follows this approach
(Constitutional Court Complementary Act, Section 8). Another
approach is to permit lower courts to invalidate a particular
application of a statute on constitutional grounds, but to
10 Lech Garlicki,
Constitutional courts versus supreme courts
, International
Journal of Constitutional Law (2007), p. 51 note 14.
11 Ferreres Comella,
ibid
., p. 273.
12 Garlicki,
ibid
., p. 55.
13 Michelman,
ibid
., p. 288-89.
4
reserve the power of invalidating the statute itself to the
constitutional court.
1.4. ESTABLISHING AN EFFECTIVE
CONSTITUTIONAL COURT
Creating an effective constitutional court, which checks
governmental power, and whose decisions are respected and
complied with, requires more than simply setting up a
constitutional court. It requires policymakers to take steps to
secure the court’s independence and protect it from capture
by political elites, and to generate a broad degree of political
support for the court from across the political spectrum.
Policymakers must also ensure that there is an adequate pool
of trained professionals who qualify as candidates for
nomination to the court, as well as staff to support the court’s
day-to-day functions.
Enshrining the principle of an independent judiciary in the
constitution is a first step towards fostering the constitutional
court’s independence. But more is needed. A court’s ability to
operate independently is primarily affected by the degree to
which political actors can influence or pressure the court. To
insulate the constitutional court from political pressure,
policymakers should consider:
Creating an appointments process that involves a
wide range of political actors, including members of
the political opposition (see section 3);
Establishing rules that make the removal of a
constitutional court judge difficult and that limit the
reasons for which a judge can be removed (see
section 4);
Prescribing defined, non-renewable term lengths for
judges (see section 2); and
Defining the professional qualifications that an
individual must hold to be eligible for appointment to
the constitutional court (see section 2).
An independent judicial council can help promote judicial
independence. Judicial councils are typically comprised of
senior members of the judiciary, and in some cases lawyers,
law professors and/or political appointees without legal
training. South Africa’s Judicial Service Commission (JSC)
includes all of the aforementioned, as well as
parliamentarians. Judicial councils are often tasked with
overseeing promotions within the judiciary, disciplining
judges, and training lawyers and judges. Placing control over
judicial promotions and discipline with a judicial council
removes these matters from the political sphere, in an effort
to ensure that these decisions are based on a judge’s merits
and not on how popular his or her decisions are with political
actors. The task of training lawyers and judges is also crucial,
particularly in countries where there are relatively few
qualified legal professionals, or where a history of
authoritarian dominance over the judiciary has raised
questions about the impartiality of judges appointed by the
authoritarian regime.14
14 For a more detailed treatment of strategies for the promotion of judicial
independence, see “International Standards for the Independence of the
2. COURT MEMBERSHIP
Policymakers creating a new constitutional court will need to
decide how many judges will sit on the court; the length of
judges’ terms and whether those terms are renewable; and
whether to set a mandatory retirement age for judges. The
qualifications that constitutional court judges must hold
should also be determined.
Number of members: The number of judges on a
constitutional court varies widely by country. Latvia’s
Constitutional Court is among the smaller bodies, with seven
members (Constitutional Court Law, Art. 3), while Turkey’s
Constitutional Court (TCC) is among the largest, with 17
members after constitutional amendments in 2010
(Constitution of Turkey, Art. 146). It is generally advisable to
create a constitutional court with an uneven number of
judges, to avoid ties during votes on cases. The number of
judges on the court should also be specified, preferably in the
constitution. This prevents other branches of government
from attempting to pack the court with additional members in
an effort to obtain more sympathetic judgments, as former
Egyptian President Hosni Mubarak did in the early 2000s.15
Length of term: The length of a constitutional court judge’s
term can affect the court’s ability to function independently.
Many constitutional courts prescribe a defined term length for
judges, often nine to 12 years (although term lengths vary
greatly around the world).16 This allows new judges to be
appointed to the court relatively frequently, which helps to
ensure that the court’s judgments are not too far removed
from the prevailing moral and political views of the society.17
Constitutional court judges’ terms may be renewable, or non-
renewable. Terms that are renewable (for example, by the
legislature) are likely to influence a judge’s rulings to some
extent, because the judge might feel pressure to issue
judgments that will please the political actors who hold the
power to renew or end the judge’s term.18 Germany initially
allowed FCC judges’ terms to be renewed, but switched to
non-renewable terms for FCC judges in 1970 to eliminate any
possibility that members of parliament might grant or deny
renewal for political reasons.19 However, non-renewable terms
(including lifetime appointments) may reduce judges’
incentives to perform effectively and their sense of
accountability to political actors.20 The Venice Commission
generally recommends “a fixed and relatively long term with
no scope for re-election” for constitutional court judges.21
Judiciary,” Democracy Reporting International and the Center for Constitutional
Transitions, October 2013.
15 Tamir Moustafa,
ibid.
, p. 198-201.
16 Ferreres Comella,
ibid
., p. 270; Violaine Autheman,
Global Lessons Learned:
Constitutional Courts, Judicial Independence and the Rule of Law
, IFES Rule of
Law White Paper Series (2004), p. 7.
17 Ferreres Comella,
ibid
., p. 270.
18 International Institute for Democracy and Electoral Assistance,
A Practical
Guide to Constitution-Building: The Design of the Judicial Branch
(2011), p. 19.
19 Donald Kommers,
Autonomy versus Accountability: The German Judiciary
, in
Judicial Independence in the Age of Democracy: Critical Perspectives from
around the World
(University Press of Virginia, 2001), p. 148-49.
20 International IDEA,
ibid
., p. 19-20.
21 Venice Commission,
The Composition of Constitutional Courts
(1997), p. 9.
5
Retirement age: Some countries prescribe a mandatory
retirement age for constitutional court judges. They may also
set a minimum age that judges must reach before they are
eligible for appointment to the constitutional court. The
retirement age may be implemented either instead of a set
term length, or in addition to it. For example, judges on
Germany’s FCC may only serve one 12-year term; in addition,
they must retire at age 68 even if they have not reached the
end of their term (FCC Act, Art. 4).
2.1. JUDICIAL QUALIFICATIONS
Setting constitutional requirements for the level of education
and professional achievement that constitutional court judges
must have obtained ensures that the judges appointed to the
court will have the expertise necessary to adjudicate the
difficult and politically significant constitutional questions
brought before the court. Specifying judicial qualifications
also creates an additional barrier to court-packing, because a
political actor or party seeking to place its supporters on the
constitutional court will have to ensure that the candidates it
nominates possess the minimum qualifications specified in
the constitution. Qualifications may also identify certain
public offices that are incompatible with appointment to the
constitutional court, usually elected political positions. This
also helps to insulate the constitutional court from political
influence.
Judicial qualifications may include:
Educational or professional expertise: Many countries require
constitutional court judges to have prior experience as a
lawyer or judge. Others also allow professors and politicians
to be appointed. The French Constitutional Council’s
members are not required to have legal training, and all
former Presidents automatically become members of the
Council (Constitution of France, Art. 56). While the majority of
the Turkish Constitutional Court’s members have been judges
prior to their appointment, a certain number of candidates for
appointment to the TCC may also be economists or political
scientists (Constitution of Turkey, Art. 146).
Many constitutions specify the level of educational training or
number of years of experience a constitutional court judge
must have in his or her profession before being appointed to
the court. For example, candidates for Italy’s Constitutional
Court must be drawn from one of the following professional
categories:22
A judge (active or retired) on one of Italy’s higher
courts (ordinary or administrative);
A full professor of law; or
A lawyer with 20 years experience in practice.
Incompatible qualifications: Some countries also identify a
set of professions or offices that constitutional court judges
may not
hold. Judges on Germany’s FCC may not
simultaneously hold office in the legislative or executive
22 Constitution of Italy, Art. 135.
branch, and may not maintain any other profession, except
that of law professor (FCC Act, Art. 3).
Other requirements: Relatively rarely, some constitutions
require that the constitutional court’s membership fulfil
certain representation requirements. For example, the South
African Constitution states that “[t]he need for the judiciary to
reflect broadly the racial and gender composition of South
Africa must be considered when judicial officers are
appointed,” (Art. 174) a requirement designed to promote the
transformation of the judiciary after the end of apartheid from
an overwhelmingly white and male body to one that
exemplifies South Africa’s diversity.
3. APPOINTMENT MECHANISMS
The procedure for appointing judges to the constitutional
court is one of the most important questions policymakers
will face when establishing the court. While judges strive to
interpret the law fairly and issue impartial decisions, their
political views will naturally play some role in how they apply
the constitution. Because of the important constitutional
questions that come before constitutional courts, and the
powerful impact the court’s decisions can have on politics, it
is widely accepted that political actors should play a role in
selecting constitutional court judges. It is also advisable to
include a wide range of political actors in the appointments
process, in order to encourage them to invest politically in the
court, so that those political actors who lose before the court
and disagree with its judgments will nonetheless abide by the
court’s judgments rather than attacking the court and
attempting to undermine it. Three common models for
constitutional court appointments include the legislative-
supermajority model, the judicial-council model, and the
multi-constituency model.23
3.1. LEGISLATIVE SUPERMAJORITY MODEL
Some countries give the power to appoint constitutional court
judges to the legislature. This helps to balance the power
given to the court to strike down acts promulgated by the
legislature. Germany’s two legislative houses, the
Bundestag
and
Bundesrat
, each appoint half of the judges on Germany’s
FCC by a supermajority of two-thirds, a rule intended to
prevent the ruling party from controlling all constitutional
court appointments (as would likely be the case if only a
simple majority were required), and to encourage parties to
work together to compromise on candidates.24 However,
Germany’s experience also shows that legislative control of
constitutional court appointments can lead to deadlock and
delays in filling vacancies on the court where parties are
unable to reach an agreement.
23 For a detailed treatment of these models, see the forthcoming report on
constitutional court appointments by the Center for Constitutional Transitions
and International Institute for Democracy and Electoral Assistance, available at
http://constitutionaltransitions.org/.
24 In the Bundestag a special committee, in which all parliamentary factions are
represented proportionally, appoints the judges with a two-thirds majority vote.
In the Bundesrat, the entire chamber votes.
6
Many countries divide the power to appoint constitutional
court judges among several different political and non-
governmental actors. Two examples of this approach are the
judicial-council model and the multi-constituency model.
3.2. JUDICIAL COUNCIL MODEL
In order to insulate the constitutional court from political
influence, some countries have created a judicial council with
the responsibility of nominating candidates for the
constitutional court. South Africa’s Judicial Service
Commission (JSC) includes members of the legislature and
the judiciary, as well as lawyers, law professors and members
appointed by the President. When there is a vacancy on the
Constitutional Court, the JSC solicits applications, decides on
a short list of candidates to interview, holds interviews that
are open to the public, deliberates on the candidates, and
presents a list of three candidates to the President, who must
then choose one. If the President rejects the list presented, he
must give reasons, and the JSC then compiles another list of
three candidates, from which the President must make an
appointment (Constitution of South Africa, Art. 174).
3.3. MULTI-CONSTITUENCY MODEL
A multi-constituency approach to constitutional court
appointments also involves a wide range of actors, but under
this model, each institution makes its appointments to the
court separately, rather than working together to make a final
decision on a candidate. In 2010, Turkey amended its
Constitution, implementing a multi-constituency model for
appointments to the Turkish Constitutional Court. The
purpose of these amendments, in part, was to allow a broader
range of actors to play a role in shaping the TCC, which was
perceived by many as dominated by a small group of elites.
Prior to the amendments, the President appointed all of the
TCC’s members, drawing them from lists of nominees
selected by Turkey’s high courts (including military courts)
and the higher education council, and directly appointing four
members from among senior lawyers and administrators
(Constitution of Turkey, Art. 146, prior to amendment in 2010).
After the 2010 constitutional amendments, Turkey’s
legislature, the Grand National Assembly, appoints three of
the TCC’s members from nominations made by the Court of
Auditors and Turkey’s bar associations. The President still
appoints the majority of TCC members, but in addition to
selecting some members from nominations made by the high
courts and by the higher education council, the President also
makes four direct appointments from the ranks of
prosecutors and judges on lower courts. In effect, the 2010
amendments have significantly expanded the pool from which
candidates may be selected for appointment to the TCC
(Constitution of Turkey, Art. 146).
Tunisia’s June 2013 draft Constitution proposes a multi-
constituency model for appointments to its newly created
Constitutional Court, and also incorporates elements of the
legislative supermajority model (June 2013 draft Constitution,
Art. 115). It sets out a two-step process. In the first step, the
President, the Speaker of the Chamber of Deputies, the Prime
Minister, and the Supreme Judicial Council each compile
separate lists of candidates. This ensures the involvement of
a wide range of political actors and other constituencies (e.g.
the judiciary). However, in the event that the Prime Minister
and the Speaker of the Chamber of Deputies are members of
the same political party, Tunisia’s proposed process may not
offer as many opportunities for the involvement of opposition
parties as hoped for. In the second step, the Chamber of
Deputies elects the Court’s judges from the four lists of
candidates. The Chamber of Deputies must elect three of the
judges from each list of six candidates, which guarantees that
each of the political actors empowered to propose candidates
will play a role in shaping the Court. Furthermore, judges must
be elected by a three-fifths supermajority of the Chamber of
Deputies, which encourages the different political parties
represented in the Chamber to work together to reach
compromises on candidates.
4. REMOVAL MECHANISMS
The rules for removing constitutional court judges can be just
as important as the rules established for judges’
appointment. Rules that make it too easy to remove a judge,
such as by granting one political institution the power to
remove a judge without requiring the approval or ratification
of the decision by any other institution, or without an appeals
process, leave constitutional court judges vulnerable to
political pressure. Judges cannot act independently if they
fear that they will be removed as a result of their decisions.
For this reason, it is important to establish clear, specific
rules regarding the
causes
for which
a constitutional court
judge can be removed, and the
procedure
for removal. It is
also important that these rules be difficult to change once
established, to protect judges’ independence. Including these
rules in the constitution, rather than in an ordinary statute,
serves this purpose by requiring a constitutional amendment
to alter the procedure for removing a constitutional court
judge.
4.1. JUSTIFICATIONS FOR REMOVAL
Most countries only permit the removal of constitutional court
judges for a narrow set of reasons, most commonly
incapacitation due to illness (physical or mental), conviction
for a serious crime or for judicial misconduct.
4.2. PROCEDURE FOR REMOVAL
The exact procedure for removing a constitutional court judge
varies by country. In many countries, including Italy and
Germany, the constitutional court itself must vote in favour of
a judge’s removal. Sometimes a supermajority vote of the
court is required to approve the removal in Italy and
Germany, a two-thirds majority is required (Constitutional
Law No. 1 of 11 Mar. 1953, section 7 [Italy]; FCC Act, Art. 105
[Germany]). This places the decision to remove a judge in the
hands of her colleagues, in an effort to ensure that an
evaluation of the claim against the judge judicial
misconduct, for example is as depoliticised as possible.
South Africa sets out a two-step process for a Constitutional
Court judge’s removal. First, the Judicial Service Commission
must make a finding that the judge is guilty of gross
misconduct, is grossly incompetent or suffers from
incapacity. Second, the National Assembly must approve a
7
resolution calling for the judge’s removal by a two-thirds
majority vote, after which the President formally removes the
judge (Constitution of South Africa, Art. 177). This removal
process requires two institutions to agree on a judge’s
removal, and requires a supermajority vote in the legislature.
5. JURISDICTION
The jurisdiction of constitutional courts varies widely, and
may include any of the following areas:25
Legislative acts: The constitutional court will almost certainly
be authorised to review the constitutionality of laws, internal
decisions made by the legislature (e.g. with respect to the
legislative process), and/or legislative omissions or inaction in
cases where the constitution imposes positive duties to enact
legislation.
Executive officials and agencies: Constitutional courts may be
tasked to review the constitutionality of executive actions and
decisions, to adjudicate disputes regarding the competence
of an agency, and/or to preside over impeachment
proceedings or corruption trials against state officials.
The federal system: In a federal system, constitutional
disputes will inevitably arise among the different levels of
government, requiring a forum for resolution. Disputes might
arise between the central government and sub-national
governments, or among sub-national governments
themselves. These will often concern the constitutionality of a
law passed or action taken by the national government or a
sub-national government. Almost all federal constitutions
provide for some form of constitutional review.26 Germany’s
Federal Constitutional Court has extensive jurisdiction over
issues related to the federal system of government (FCC Act,
Art. 13).
Rights protection: If individual citizens can petition the
constitutional court to allege violations of their constitutional
rights by legislation or executive action (section 6), the
resulting decisions will interpret the content and scope of the
rights enshrined in the constitution, and define the
obligations of the state to enforce those rights.
The constitution-making process: A constitutional court may
be called upon to adjudicate disputes that arise during a
constitution-drafting process, or to review the
constitutionality of amendments to the constitution. For
example, South Africa’s Constitutional Court was required to
review the 1996 Constitution before it entered into force to
certify that it complied with the principles set out in the
interim 1994 Constitution.27 Colombia’s Constitutional Court
rejected then-President Alvaro Uribe’s attempt to amend the
25 Four of these categories are identified in: Andrew Harding, Peter Leyland, and
Tania Groppi,
Constitutional Courts: Forms, Functions and Practice in
Comparative Perspective
, in
Constitutional Courts: A Comparative Study
(Harding
and Leyland, eds.) (Wildy, Simmons & Hill 2009).
26 Alec Stone Sweet,
Constitutional Courts
, in the
Oxford Handbook of
Comparative Constitutional Law
(Rosenfeld and Sajó, eds.) (Oxford, 2012), p. 821.
27 Certification Decision, CCT 23/96.
Constitution to allow him to run for a third term, on the
grounds that the amendment would weaken many of the core
constitutional constraints on presidential power, and thus
constituted an unlawful “substitution” (or alteration) of the
Constitution (Sentencia C-141 (2010)).28
Political parties and elections: Some constitutional courts are
granted the power to determine the legality of political
parties, review the constitutionality of actions taken by
parties or certify electoral results. For example, the Turkish
Constitutional Court has played an active and controversial
role in banning political parties when it determined that the
platforms of those parties violated the Constitution’s
principles.
International law: A constitutional court may be authorised to
determine a state’s obligations under international
agreements and treaties to which it is a party, whether a state
has met those obligations, and the constitutionality of treaty
obligations.
Constitutional courts may be granted jurisdiction over any or
all of these areas. In some cases, the constitutional court’s
jurisdiction is quite restricted: in Belgium, for example, the
Constitutional Court may only review legislation, including
conflicts of law within Belgium’s federal system
(Constitutional Court of Belgium, Art. 142). However, many
constitutional courts are granted relatively broad jurisdiction
including many of the areas described above.
6. ACCESS TO COURT
Cases may come before the constitutional court in a variety of
ways, including referral by other courts or from other
branches of government, or through individual complaints
brought by citizens.29
Referral from other courts: In a centralised system of
constitutional review, any court adjudicating a matter that
involves a question of constitutional interpretation must
generally refer that question to the constitutional court
(section 1.3). Proceedings in the lower court are halted while
the constitutional court reviews the matter, and the
constitutional court’s determination is binding on the lower
court.
Referral from the legislature or government officials: In some
countries, members of the legislature may petition the
constitutional court directly. Sometimes a certain number of
legislators are required to join the petition for it to be
28 See David Landau,
Should the Unconstitutional Constitutional Amendments
Doctrine be Part of the Canon?
, ICONnect, 10 June 2013,
http://www.iconnectblog.com/2013/06/should-the-unconstitutional-
constitutional-amendments-doctrine-be-part-of-th e-canon/. For discussion of
other countries whose constitutions explicitly forbid the amendment of certain
constitutional provisions, or whose constitutional courts have declared certain
constitutional provisions to be unamendable, see Yaniv Roznai,
Unconstitutional
Constitutional AmendmentsThe Migration and Success of a Constitutional
Idea
, 61 American Journal of Comparative Law 657 (2013).
29 See Harding, Leyland, and Groppi,
ibid
., p. 9.
8
admissible, a requirement that can impact opposition political
parties’ ability to petition the court. For example, France
requires at least 60 senators or members of the National
Assembly to refer an Act of Parliament to its Constitutional
Council (Constitution of France, Art. 61). Some constitutions
also grant certain government officials the power to petition
the constitutional court, for example a human rights
ombudsman, the speaker of a house of parliament, the
president, or the heads of independent commissions (e.g. the
electoral commission).
Individual complaint mechanism: Some countries grant
citizens the power to bring a case directly before the
constitutional court. This power may also be extended to civil
society organisations engaged in public-interest litigation.
Colombia’s Constitution grants every citizen the right to
petition the Constitutional Court to challenge the
constitutionality of laws, executive decrees and amendments
to the Constitution (Art. 241). Individual complaints are a
powerful tool for ensuring that a constitution’s bill of rights is
enforceable. They may also help to generate popular support
for the court, as its decisions contribute to the protection of
citizens’ rights. However, allowing any citizen to bring a
complaint is also likely to increase the number of cases on a
court’s docket, and requires that the constitutional court have
sufficient infrastructure (law clerks, secretaries) to manage
the flow of cases.
7. FORMS OF CONSTITUTIONAL
REVIEW
Constitutional courts can engage in constitutional review of
statutes either before the statute has entered into force (
a
priori
review) or thereafter (
a posteriori
review). Some
countries only permit the constitutional court to exercise one
or the other forms of review, while other countries grant the
court the power to exercise both. The German FCC may
conduct both
a priori
and
a posteriori
review (German Basic
Law, Arts. 93 (1) & 100; FCC Act, Art. 13 (6) & (11), Arts. 76-82).
7.1. A PRIORI REVIEW AND ADVISORY OPINIONS
Constitutional courts may be granted the authority to review
the constitutionality of proposed laws before they are enacted
by the legislature, or after they have been enacted but before
they have been implemented, known as
a priori
review. The
purpose of
a priori
review is to detect unconstitutional laws
before they result in a constitutional violation causing actual
harm.
A priori
review is generally initiated by political officials:
members of the legislature (often representatives of the
political opposition) or the executive, or representatives of
regional governments.30 France requires its Constitutional
Council to review all institutional acts (statutes which
implement or give greater detail to constitutional provisions),
and all Private Members’ Bills before they are enacted
(Constitution of France, Art. 61).31
30 Stone Sweet,
ibid
., p. 823.
31 Private Members’ Bills are bills proposed by one member of Parliament, rather
than bills proposed on behalf of the government.
Constitutional courts may also be permitted to issue advisory
opinions. The government generally requests advisory
opinions, usually regarding the constitutionality of proposed
laws, although they may also request guidance regarding the
interpretation or effect of a constitutional provision.
7.2. A POSTERIORI REVIEW
Most constitutional courts have the power to review the
constitutionality of laws after they have been enacted, known
as
a posteriori
review.32 This type of review normally occurs
when a case involving a constitutional question reaches the
constitutional court on appeal or referral from a lower court.33
A posteriori
review allows the court to review a law’s
constitutionality after it has been in effect for long enough for
its real world impact to be seen. It is sometimes easier to
assess whether a law will violate constitutional rights or other
provisions after it has been implemented.
8. REMEDIAL POWERS
Constitutional courts can be given a range of remedies to use
when issuing a judgment, which determines the effects of
their rulings. These options include:
Declarations of unconstitutionality: The rules governing
declarations of invalidity vary. In principle, constitutional
courts could declare either an entire law or part of a law
unconstitutional. Their judgments could take immediate
effect or be delayed to give the legislature time to amend the
law or issue a new law. Some courts take a particularly
cautious approach to issuing declarations of invalidity. The
Italian Constitutional Court, for example, has developed a
practice of issuing “interpretative rulings” in which it declares
that one particular interpretation of a statutory provision is
unconstitutional, or that there is only one constitutional
interpretation for a statutory provision, thus requiring all
courts to interpret the provision in that way in future cases.34
Only when statutory language clearly violates the constitution
will the Italian Constitutional Court issue a declaration of
invalidity.
Finality of the judgment: In some systems, the constitutional
court’s decision is binding and irrevocable. Relatively rarely,
constitutions have granted the legislature the power to
override a constitutional court’s decision. For example, prior
to 2003, the Romanian Constitution allowed Parliament to
override a Constitutional Court decision striking down a law if
a two-thirds majority of each chamber passed the law again
(Constitution of Romania, Art. 145, prior to amendment in
2003). In 2003, Romania amended its Constitution to remove
this provision (Constitution of Romania, Art. 147). Of course,
the Constitution could be amended in response to a
constitutional court decision. Constitutional courts may also
32 See the tables comparing constitutional courts around the world in Autheman,
ibid
., p. 21-30.
33 In some systems, the constitutionality of laws can also be reviewed ‘in
abstract’ without reference to a specific case.
34 Garlicki,
ibid
., p. 54.
9
issue certain types of decisions, such as advisory opinions,
that are not binding on other branches of government or on
the lower courts.
Annulment of electoral results: Where a constitutional court
has jurisdiction to certify a country’s elections, it may have
the power to annul the results of the election if it finds that
constitutional rights were violated during the electoral
process. Annulling the results of an election can have severe
and far-reaching consequences for a country’s democracy,
and can lead to periods of upheaval and uncertainty if the
elected body is dissolved as a result of the court’s decision (as
happened when Egypt’s Supreme Constitutional Court
annulled the country’s first post-Mubarak parliamentary
elections, held in 2011/12). Policymakers should keep the
potential consequences in mind when deciding what powers
to grant the constitutional court regarding electoral laws and
elections.
Injunctions and interim orders: Like ordinary courts,
constitutional courts may also have the power to issue
injunctions, which are orders that command someone to take
a certain action, or forbid them from doing so. Constitutional
courts may also be able to issue interim orders while
adjudication of a case is ongoing, such as an order that
reinstates a plaintiff at her job while the court evaluates a
claim that her termination was the result of unconstitutional
discrimination.
9. CONCLUSION
Constitutional courts play an important role in consolidating
democracy and contributing to the rule of law. As the
institution charged with determining the meaning of
provisions in the constitution and resolving the constitutional
disputes that will invariably arise between political actors or
parties in any democratic government, the design of the
constitutional court and the powers it is given deserve careful
consideration from policymakers.
There is no ideal form for a constitutional court. The court’s
design will depend on a country’s unique political and social
context. However, when deciding what the constitutional
court will look like, policymakers should keep in mind that a
robust constitutional democracy requires a court that has
sufficient powers to ensure that the constitution is respected
as the supreme law of the land. Policymakers should also
consider establishing rules that will encourage the
appointment of well-qualified, distinguished individuals as
constitutional court judges, and will protect their ability to
operate independently of the other branches of government.
How policymakers decide to answer the design questions
outlined in this paper will have a lasting impact on the
constitutional court’s ability to play its role effectively.
10
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