Historical Steps in the Development of Systems of Constitutional Review
   and Particularities of Their Basic Models

History

The establishment of supreme judicial bodies for the protection of constitutionality and legality is not an invention of contemporary legal systems, but is rather related to the development of constitutionality, in particular on the European Continent. Constitutional/judicial review has passed though several characteristic development stages ^[1]:

Development up to World War I

Ancient Athenian law distinguished between a nomos (which might in a certain sense be compared to contemporary constitutional laws), and a psephisma, which in present times might be called a decree ^[2]. The fundamental principle was introduced that the decree (a psephisma), whatever its content, could not conflict with the nomoi in either form or substance. Two consequences attended the enactment of an unconstitutional psephisma. First, the member of the legislature who had proposed the illegal decree incurred criminal liability, which gave rise to a public right of action. Second, psephismata that were in conflict with the nomoi were considered void. The Athenian judges, although in principle obliged to decide cases on the basis of both the laws and the decrees, were bound by the latter only in so far as they were consistent with the former.

Certain elements of constitutional review go back as far as the year 1180, i.e. to the old German Reich. At first the corresponding judicial bodies dealt primarily with jurisdictional disputes between individual rulers and partly even with infringements of rights. Certain elements of constitutional review kept emerging under different forms throughout German legal history, until it was introduced in the present sense of the word with the Weimar Constitution. Preliminary forms of constitutional review existed in France by the middle of the 13th Century. Portugal introduced its constitutional review in Philip's Code in the 17th Century. More serious projects of constitutional/judicial review appeared in the Constitutions of Norway, Denmark and Greece in the 19th Century.

In 1867 the Austrian Federal Court acquired the jurisdiction to deal with jurisdictional disputes concerning the protection of individual political rights vis-à-vis administration; the State Court, on the other hand, made decisions on constitutional complaints (Staatliche Verfassungsbeschwerde).

Although some initial elements of constitutional review can be seen already in the Federal Constitution of Switzerland (1848), the Swiss Federal Court acquired broader powers only with the modification of the Constitution in 1874.

In Norway constitutional review originates in the jurisprudence dating from 1890. Romania introduced constitutional review before World War I following the American model.

While the modern English legal system knows no constitutional review, English legal history does include some of its elements, i.e. the principle of the supremacy of the Constitution dates back to 1610 and is of essential significance for the development of constitutional review in England. Another example of an English contribution to this development is the impeachment originating in the late Middle Ages. Ideas about the supremacy of the Constitution and the right to judicial review spread from England over to the United States. There, already at the end of the 18th Century, the Court proclaimed individual English Acts null and void on the territory of the North American States. However, according to the 1789 Constitution the Supreme Court as the highest Federal Court did not have any express constitutional powers. The decisive impact on the development of constitutional review was exerted by the famous Marbury v. Madison Case(1803), in which the Supreme Court arrogated the power of judicial review concerned with the conformity of statutes with the Constitution. This gave a basis for the enforcement of the power of the American Supreme Court to carry out the judicial review of statutes. Although the next similar case appeared in this Court only in 1857, the way to the constitutional review of regulatory measures had already been paved.

The American Supreme Court created the grounds for the new institution in practice, i.e. the judicial protection of constitutionality. Such an American system of constitutional review was adopted primarily in some particular South American countries. Some of them explicitly determined the matter by the their constitution. In Europe, except in some Scandinavian countries, such a system of (indirect) judicial review of constitutionality could not be introduced because of the too high reputation of the legislative bodies.

The French, on the other hand, have clung tenaciously to the idea that no judicial body should be given the power to review the conformity statutes with a supposed higher law. The legislature, therefore, as the voice of popular sovereignty, was seen as the best guarantor of fundamental rights. From the standpoint of the development of constitutional review in continental Europe, France has always been against the notion that the acts of superior bodies and especially of parliamentary assemblies, as representatives of national sovereignty, might be subjected to review by the judiciary ^[3].

The Development Between the two Wars

The development between the two Wars is referred to as "the Austrian period". The Constitution of 1920 marks the foundation of the Austrian Constitutional Court with the exclusive power to review the constitutionality of statutes (at first, however, only of a preventive nature), following the work of the Austrian legal theorists Adolf Merkl and Hans Kelsen.

Following the example of the Austrian model, before World War II constitutional review was introduced in the following countries: Czechoslovakia (1920), Liechtenstein (Staatsgerichtshof, 1925), Greece (1927), Egypt (1941), Spain (1931) and Ireland (1937). The trend to broader enforcement of constitutional review was interrupted by the War and the already founded institutions failed to become active in practice (e.g. from 1933 through 1945 Austria was without constitutional review, after 1938 Czechoslovakia was without constitutional review).

The development after World War II

Constitutional review in the proper sense of the word, taken from the theoretical point of view, was able to develop only when instead of the principle of the sovereignty of the Parliament ^[4]there prevailed the idea of the supremacy of the Constitution ^[5] and where constitutional review is performed by a special body, independent of the legislative and executive power. ^[6] Such approaches were characteristic of the development after World War II. On the other hand, constitutional review also involves the principle of the vertical separation of powers. It emerged in federal states, whereby constitutional review was supposed to exert supervision over the federal Legislature in relation to member states. This was also due to historical reasons: the painful experiences of the past War and Fascism as a counterweight gave birth to the idea that constitutional review was characteristic of democracy. There were also institutional and political reasons: constitutional review should also represent efficient protection vis-à-vis legislative and executive power. The final step was to provide a means for guaranteeing government's obedience to the constitution, separate it from the legislative power itself and embody it in the active work of judges or, in some systems, of a special constitutional court ^[7]. This active work of the judiciary makes the necessarily vague terms of constitutional provisions more concrete and gives them practical application. Through this work the static terms of the constitution come alive, adapting themselves to the conditions of everyday life. It is in this way that the values embodied in the Higher Law become practical realities. As such this framework of modern constitutions and judicial review synthesizes the ineffective and abstract ideals of natural law with the concrete provisions of positive law. Through modern constitutionalism, in short, natural law, put on an historical and realistic footing, has found a new place in legal thought.

Therefore, most countries introduced constitutional review directly after World War II (previously this had been a specialty of American law), including Brazil (again in 1946), Japan (1947), Burma/Myanmar (1947), Italy (1948), Thailand (1949), Germany (1949), India (1949), France (1958), Luxembourg, Syria (1950) and Uruguay (1952). In addition, constitutional review spread with different practical efficiency in Asia, Central and South America and Africa.

A New Period of Development in the Seventies

This period was marked with political changes in certain South European countries which introduced constitutional review upon the abolition of dictatorships: Greece (1968), Spain (1978), and Portugal (1976). In this period constitutional review was also introduced in the following countries: Cyprus (1960), Turkey (1961), Algeria (1963), former Yugoslavia (1963), as well as in Slovenia and other federal units of the former Yugoslavia (1963). In the meantime, certain existing systems of constitutional review introduced systemic revisions (Austria, Germany, Sweden, France, and Belgium). As a result of the political and social changes in the Eighties, constitutional review started to change also in many countries in Central and South America. In that part of the world a special position was accorded to Argentina, where the process of democratic transformation in a federal state first developed in its units, marked by the gradually increasing introduction of the elements of constitutional review of different intensity by the individual provinces.

The Introduction of Constitutional Review in the New Democracy Countries

Subsequent development involves the introduction of constitutional review in the central and Eastern European countries and in the Commonwealth of Independent States (thereafter, CIS). ^[8] The introduction of constitutional review entails the dissolution of the former principle of the unity of powers, in view of which the then socialist systems as a rule did not have any constitutional review. In the past, the only exceptions were the former Yugoslavia, which in 1963 introduced constitutional review following the Austrian or German model, and Czechoslovakia, where constitutional review was introduced in 1968, but did not become active in practice.

Models of Constitutional/Judicial Review

The Constitutional Court is a special body that as the bearer of the protection of constitutionality holds a certain legal superiority in relation to other branches of power. Its review covers all legislative acts that are the highest legal instruments of a specific legal and political system. The status of a true institution with the power to provide constitutional review should only be held by the institution that in the specific system of the separation of powers holds such a limiting relation to the legislative power (the Parliament) that it may annul statutes adopted by the legislative body. It is a judicial institution established in view of special and exclusive decision-making powers on constitutional matters. This institution is located outside the ordinary court system and is fully independent of other branches of public authorities.

Any particular system can be classified on the basis of a common model of constitutional court structures considering the following essential components:

DOSSIER OF THE CONSTITUTIONAL COURT OF ............................

STATE:

TITLE:

YEAR OF FOUNDATION:

SEAT:

I. CHRONICLE

1. Date and context of establishment

2. Position in the hierarchy of courts

II. STANDARD LEGAL REFERENCE

1. The Constitution of.....................

2. The Constitutional Court Act......................

3. The Rules of Procedure........................

4. Other Internal Rules...........................

III. COMPOSITION AND ORGANIZATION

1. Composition

1.1. The number of judges:

1.2. Electoral/appointment body:

1.2.1. APPOINTMENT BASED SYSTEM (Without the Participation of a Representative Body):

1.2.2. Election Based System:

1.2.3. Mixed Systems (Appointment and Election):

1.2.4. Predetermined Composition From High Judicial Officials:

1.3. The Court members:

1.3.1. The term of office:

1.4. The Court President:

1.4.1. The term of office:

1.5. The qualifications and the required professional experience of constitutional court judges:

1.6. Incompatibilities:

1.7. Immunities:

1.8. Release from office prior to the expiration of the term:

2. Proceedings

2.1. Hearing in plenum:

2.1.1. A quorum:

2.2. Hearing in camera:

2.2.1. A quorum:

2.3. The Dissenting/Concurring opinion:

2.4. Public hearing:

2.5. Internal session:

3. Organization

3.1. Administrative autonomy:

3.2. The budget:

3.3. Administrative services:

3.4. Secretary:

3.5. Financial service:.

3.6. Special services:

3.6.1. Legal information center:

3.6.2. Legal library:

3.6.3. Legal advisers:

3.6.4. Clerical staff:

IV. POWERS

1. Constitutional Court Review

1.1. Preventive review:

1.2. A posteriori review:

1.2.1. Abstract review:

1.2.2. Concrete review:

2. Other powers

2.1. Constitutional complaints:

2.2. Jurisdictional disputes:

2.3. The unconstitutionality of acts and activities of political parties:

2.4. Charges against the President of the Republic:

2.5. Charges against the Prime Minister or against any Minister of State:

2.6. Electoral matters:

2.7. Referendums:

2.8. Other matters with which the Court is charged by the Constitution or statute:

3. Standing before the Constitutional Court

3.1. State bodies:

3.2. Individuals:

V. NATURE AND EFFECTS OF DECISIONS

1. Finality:

2. Binding force:

2.1. Erga omnes:

2.2. Inter partes:

3. Ex officio:

4. The temporary order:

5. Abrogation in whole or in part:

5.1. Effectiveness immediately or within a certain period of time:

6. Annulment in whole or in part:

7. The consequences of decisions, damage claims

8. The declaration of unconstitutionality and illegality:

9. The legislative omissions:

10. The abrogation, retroactive or prospective, of a general act while deciding on a constitutional complaint:

11. The final decision on a contested human right or freedom based on a constitutional complaint:

12. Stating the competent body:

13. Impeachment:

13.1. Finding the proposal for impeachment to be unfounded:

13.2. Decision on the basis for impeachment/decision on the termination of the Presidents/Prime Ministers/Ministers office:

14. The annulment of an unconstitutional act/activity of a political party act/activity or the ordering of a deletion from the register of legal political parties:

15. The annulment of decisions of the National Assembly and rulings on the election of representatives:

16. Obligatory opinions on the conformity of international treaties with the Constitution:

17. Declarations on the constitutionality of a proposal to call a referendum:

18. Other forms of decisions:

VI PUBLICATION OF CONSTITUTIONAL COURT DECISIONS

1. The Official Gazette:

2. The Official Digest:

3. Legal Journals:

4. Electronic Publishing:

5. Other forms:

VII THE LEGAL INFORMATION SYSTEM

From the organizational point of view, it is possible to distinguish different models of constitutional/judicial review, as follows:

The "American" - Judicial Review Model (based on the Marbury Case (1803), dealt with by the Supreme Court of the United States, and on John Marshall's doctrine), whereunder constitutional matters are dealt with by all ordinary courts (a decentralized or diffuse or dispersed review) under ordinary court proceedings (incidenter). It is a specific and a posteriori review, whereby the Supreme (high) Court in the system provides for the uniformity of jurisdiction. In the diffuse system, the decisions as a rule take effect only inter partes (except for the principle stare decisis, whereunder the courts in the future abide by the ruling). In principle the decision concerning the unconstitutionality of a statute is declaratory and retrospective, i.e. ex tunc (with pro praeterito consequences). This system was adopted by the following countries:

• IN EUROPE: Denmark, Estonia, Ireland, Norway, Sweden;
• IN AFRICA: Botswana, Gambia, Ghana, Guinea, Kenya, Malawi, Namibia, Nigeria, the Seychelles, Sierra Leone, Swaziland, Tanzania;
• IN THE MIDDLE EAST: Israel;
• IN ASIA: Bangladesh, Fiji, Hong Kong (until 1 July 1997), India, Japan, Kiribati, Malaysia, the Federal States of Micronesia, Nauru, Nepal, New Zealand, Palau, Papua New Guinea, Singapore, Tibet ^[9], Tonga, Tuvalu, Vanuatu, Western Samoa;
• IN NORTH AMERICA: the Canada, USA;
• IN CENTRAL AND SOUTH AMERICA: Argentina, Bahamas, Barbados, Belize, Bolivia, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Mexico, St. Christopher/Nevis, Trinidad and Tobago.

The New (British) Commonwealth Model (Mauritius) cannot be classified either under the American or the European model. It is characterized by a concentrated constitutional review under the jurisdiction of the Supreme Court consisting of ordinary judges without political nomination; as a rule, it involves preventive (a priori) review and the consulting function of the Supreme Court, although repressive (a posteriori) review is also possible; decisions take an erga omnes effect.

The "Austrian" (Continental - Constitutional Review) Model (based on Kelsen's Model of 1920, involving the interconnection of the principle of the supremacy of the Constitution and the principle of the supremacy of the Parliament), whereunder constitutional matters are dealt with by specialized Constitutional Courts with specially qualified judges or by ordinary Supreme Courts or high courts or their special chambers (concentrated constitutional review) in special proceedings (principaliter). As a rule it is an abstract review, although a concrete review is also possible. In addition to the a posteriori review, a priori review is also foreseen. The decisions have an erga omnes effect with reference to the absolute authority of the institution by which they are taken. Bodies exercising constitutional review may be:

Constitutional Courts

• IN EUROPE: Albania, Andorra, Austria, Belarus, the Federation of Bosnia and Herzegovina (with the Constitutional Courts of the federal entities Bosnia and Herzegovina and the Serbian Republic of Bosnia), Bulgaria, Croatia, the Czech Republic, the FRY(with the Constitutional Courts of constituent republics Serbia and Montenegro), Germany (with the regional Constitutional Courts: Baden-Wuerttemberg, Bavaria, Brandenburg, Bremen, Hamburg, Hessen, Niedersachsen, Nordrhein-Westfalen, Rheinland-Pfalz, Saarland, Sachsen, Sachsen-Anhalt), Hungary, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Moldavia, Poland, Romania, the Russian Federation (with the federal unit Constitutional Courts: Adigea, Altai, Baskiria, Buryatia, Chechnia, Chuvachia, Dagestan, Inguchia, Irkutska Oblast, the Kabardino-Balkar Republic, Kakasa, the Karachaewo-Cherkez Republic, Karelia, Khalmukia, Koma, Marii-El, Northern Ossetia, Tatarstan, Tuba, Udmurtia, Yakutia/Sakha), Slovakia, Slovenia, Spain, Turkey, Ukraine;
• IN AFRICA: Angola, Benin, Burundi, the Central African Republic, Egypt, Equatorial Guinea, Gabon, Madagascar, Mali, Rwanda, South Africa, Togo;
• IN THE MIDDLE EAST: Cyprus, former Iraq, Palestine, Syria;
• IN ASIA: Armenia, Azerbaijan, Georgia, Kyrgyzstan, Mongolia, South Korea, Sri Lanka, Tajikistan, Thailand, Uzbekistan (with the regional Constitutional Committee of the Republic of Karakalpakstan);
• IN CENTRAL AND SOUTH AMERICA: Chile, Surinam, Tucuman Province (Argentina) with the Constitution of Tucuman of 28 April 1990;

High Courts or their special chambers

• IN EUROPE: Belgium (the Arbitration Court), Iceland, Liechtenstein, Monaco, Kosovo(the FRY);
• IN THE MIDDLE EAST: Yemen;
• IN AFRICA: Burkina Faso, Cameroon, Chad, Eritrea, Niger, Sudan, Uganda (1995), Zaire, Zambia;
• IN ASIA: the Philippines;
• IN CENTRAL AND SOUTH AMERICA: Costa Rica, Nicaragua, Panama, Paraguay, Uruguay;

The Constitutional Council

• in the Middle East: Lebanon;
• IN AFRICA: Mauritania, Senegal;
• IN ASIA: Cambodia, Kazakhstan.

Institutions based on the European model of constitutional review share the following common characteristics:

• constitutional review is introduced under different circumstances, depending on the particular national system;
• institutionally independent institutions of constitutional review located outside the judicial branch;
• in the proceedings following a constitutional complaint problems are created by the separation of constitutional review from the ordinary courts;
• constitutional status (administrative and financial autonomy) is a prerequisite for the independence of the Court;
• a monopoly of constitutional review (specialization in constitutional review), the concentration of power in one institution, most often with the power to abrogate statutes adopted by the Parliament;
• constitutional court judges are appointed by bodies of political power;
• the special nature of the jurisdiction: decisions are of a legal and political nature although they may also have a purely consultative function;
• the prevailing constitutional review of statutes;
• generally such constitutional review is repressive, although to a minor extent constitutional review is of a preventive nature.

The Mixed (American Continental) Model with the elements of both a diffuse and concentrated system; despite the constitutional review power of the central Constitutional or Supreme Court (or its special chambers), all ordinary courts in the particular country are entitled to not apply laws deemed as not in conformity with the Constitution:

Constitutional Courts

• IN EUROPE: Portugal;
• IN CENTRAL AND SOUTH AMERICA: Colombia, Ecuador, Guatemala, Peru;

High Courts or their special departments

• IN EUROPE: Greece, Switzerland (in view of the fact that in the Swiss system - a system of limited constitutional review - the Swiss Federal Court cannot evaluate federal statutes, generally binding resolutions and ratified international agreements: the principle of supremacy exists on the federal level);
• IN ASIA: Indonesia, Taiwan;
• IN AFRICA: Cape Verde;
• IN CENTRAL AND SOUTH AMERICA: Brazil, El Salvador, Honduras, and Venezuela.

The "French" (Continental) Model (based on the model of the French Constitutional Council - Conseil Constitutionnel - of 1958), where constitutional matters are subject to review by special bodies of constitutional review (most often the Constitutional Council) or by special chambers of ordinary Supreme Courts (concentrated constitutional review) in special proceedings (principaliter), provided that constitutional review is mainly of a preventive (consultative) character (although these systems also have a repressive form of constitutional review, in particular with reference to electoral matters):

• IN EUROPE: France;
• IN THE MIDDLE EAST: Iran;
• IN AFRICA: Algeria, Comoros, Djibouti, Ivory Coast, Morocco, and Mozambique.

Other Bodies with the Power of Constitutional/Judicial Review (the National Council, Parliament or specialized parliamentary bodies, etc.):

• IN EUROPE: Finland;
• IN THE MIDDLE EAST: Bahrain, Kuwait, Oman;
• IN AFRICA: Congo, Ethiopia, Guinea-Bissau, Sao Tome and Principe, Tunisia, Zimbabwe;
• IN ASIA: Afghanistan, Brunei, Burma/Myanmar, China (as well as Hong Kong after 1 July 1997), Laos, North Korea, Pakistan, Turkmenistan, Vietnam;
• IN AUSTRALIA;
• IN CENTRAL AMERICA: Cuba.

Systems Without Constitutional/Judicial Review:

• IN EUROPE: Great Britain ^[10], the Netherlands ^[11];
• IN AFRICA: Lesotho, Liberia, and Libya ^[12].

International judicial institutions with certain functions of constitutional review:

• the European Court of Human Rights in Strasbourg (for the European complaint);
• the Court of Justice of the European Community in Luxembourg (for legal action leading to annulment; legal action against the omission of action by the Council of Ministers or the Commission of the Community; the solution of previous issues as a concrete review upon the demand of a member state court);
• the Court of EFTA Geneva (for the settlement of disputes between EFTA member states, a concrete review requested by the court of a member state of EFTA);
• Comision y la Corte Interamericanas de los Derechos Humanos;
• Tribunal de Justicia del Acuerdo de Cartagena;
• La Corte Centroamericana de Justicia como Tribunal Constitucional de Centroamerica;
• the African Court of Human Rights.