The idea of judicial review of legislation grows up together with an awareness of the
necessity to ensure respect of constitutional provisions by Parliament: once the social
community has agreed upon some basic principles that are enshrined in a fundamental
charter it becomes more and more important to preserve what is called the "rigidity" of
the Constitution, so as to prevent the enactment of ordinary laws at variance with those
principles.  The legislative assembly can usually amend the Constitution only by means
of a special procedure.  However, the guarantee of a Constitution would be easily
bypassed if parliaments were allowed to approve normative acts that are substantially
inconsistent with the Constitution without any form of control, whether a priori or a
posteriori.  Therefore, every institutional system based on the supremacy of the
Constitution has to entrust an organ or a body with the task of reviewing legislation, in
a judicial capacity.

If we have a comparative overlook at the experiences of constitutional democracies we
discover that the judicial review of legislation can be ensured in two different ways: on
the one hand, we have the American tradition ("diffuse" review), according to which
every judge has the duty not to apply a law which he deems unconstitutional; and on
the other hand, there is the Continental (European) tradition, based on a centralized
review by a special Constitutional Court.

According to the first system, whose first application dates back to 1803 (the case
Marbury vs. Madison before the United States Supreme Court) every judge is
defined as a guardian of the Constitution, to which each citizen is guaranteed access
when a question arises as to whether a law (or an executive act implementing that law)
is inconsistent with the Constitution. The decision of the judge is binding only with
regards to that specific trial; however, an erga omnes decision is reached in principle
when the Supreme Court is requested to decide on a specific matter, because all
judges have to apply the principle of stare decisis (the decision of the Supreme Court
is considered as a binding precedent).


The continental model of constitutional justice has its origins in the constitutions of
Czechoslovakia and Austria of 1920, at the initiative of Hans Kelsen, a great
constitutional lawyer of the time. The main idea was to establish a body that is separate
from the ordinary judicial courts, given the fact that, in Kelsen's opinion, the judicial
order represents one of the main powers of the State, in relation and sometimes in
opposition to the executive and legislative powers. So, the defense of the Constitution
as the supreme norm could be better obtained by setting up a special centralized
Court, composed of members elected or appointed by all the main powers, in order to
have impartial decisions and to ensure the uniformity of the constitutional law. The
intervention of the Court can take place before the enactment of a law (preventive
control), as it happens in France, or after the enactment and during a trial, as provided
by the Italian Constitution.  This manner of judicial review is commonly applied in the
majority of western European countries and by almost all the modern eastern
democracies.

Both the systems are equally acceptable in a democratic state, and the drafters of a
new constitution can legitimately choose between the two.  Furthermore, judicial
review is just one of the functions which is usually performed by a Constitutional Court,
and even the adoption of an American system of judicial review does not imply the
impossibility of establishing a Constitutional Court with the aim of dealing with other
important issues such as:

The resolution of conflicts between the main powers of the State: there are
cases when it is necessary to define clearly the boundaries of the sphere of
competence of different powers (i.e. executive vs. legislative, judiciary vs.
executive...); the Court gives the final decision and, if it deems, it repeals the
acts which are inconsistent with the proper separation of powers;

The resolution of conflicts between territorial entities within the State: it is
typical of the countries with a complex territorial structure; in these cases, the
constitutional provisions do not always determine the division of power either
among the territories or with regards to the relationship between local
authorities and central State power. The Court is entitled to solve these
conflicts of competence;

The compatibility of international treaties with the Constitution: this control is
exercised by the Court before the ratification of the treaty, and the
Constitutional Court verifies whether the Constitution requires amendment in
order to recognize the treaty as an act having normative character within the
State;

The judgement on individual appeals concerning violations of fundamental
rights: this is usually related to an individual act of public powers (not a general
normative act) which an individual claims has violated fundamental rights
proclaimed by the Constitution. Even if the decision has a direct impact on a
specific case, the reasoning followed by the Court rises to a general dimension
as an instruction given to the public authorities pro futuro;

The verification of the constitutionality of political parties: it is provided by
some European constitutions (i.e. in Germany), and it is a tool which prevents
the organization of a political association whose aims are at variance with the
Constitution;

The control over electoral procedures and the holding of referenda:  the first is
sometimes assigned to the Constitutional Court in order to guarantee an
impartial judgement on the fairness of elections. As far as referenda are
concerned,  the intervention of the Court can take place before the holding (to
judge on the admissibility of  the popular vote on determined issues, as it
happens in Italy) or after the vote (to check the regularity of it);


The judgement on trials involving high officials (President of the Republic,
ministries...): in order to respect the principle of separation of powers, it is
stated that the judgement on such trials cannot be assigned to an ordinary
court. In some fundamental charters, it is provided that a few popular judges
are selected to join the Court for the trial, so as to ensure the sovereignty of the
people in performing such an important task.

Submitted by Dimitri Girotto
Venice Commission
Council of Europe
F-67075 Strasbourg Cedex
France
Tel: +33 3 8841 20 00 (Switchboard)
Tel: +33 3 8841 30 48 (Direct line)
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E-mail: [email protected]