Concentrated systems of judicial review

• Author: Allan R. Brewer-Carías
• Profession: Emeritus Professor of Law, Central University of Venezuela Fellow, Trinity College, and Simón Bolívar Professor, University of Cambridge, UK (1985-1986)
• Pages: 255-341

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JUDICIAL REVIEW IN COMPARATIVE LAW

PART FIVE

CONCENTRATED SYSTEMS OF JUDICIAL

REVIEW

I. GENERAL FEATURES

The concentra ted system of judicial review, contrary to the diffuse system, is

basically char acterised by the fact that the constitutional syste m em powers one

single state organ of a given country to act as a constitutional judge, in the sense of

being the only state organ to decide upon constitutional matters regarding legislative

acts and other state acts with similar rank or value, in a jurisdictional way.

This state body with the monopol y of acting as a constitutional judge, can

either be the Supreme Court of Justice of the country, in its character as the highest

court in the judici al hierarchy or it can also be a speci al Constitutional Cou rt,

Counc il or Tribun al, speci ally crea ted by the Co nstitutio n to act as the o nly

constitutional judge, and organised outside the ordinary judicial hierarchy. In both

cases, the common trend regarding the activity of those bodies is that as constitutional

judges they exercise a jurisdictional activity.

Therefore, the concentrated system of judicial review of the constitutionality

of legisla tion, even though gene rally identifi ed with the «European mo del» of

special constitutional courts,1 does not necessarily imply the existence of a special

Constitutional Court, constitutionally organised separate from the ordinary judiciary.

It only implies the assignment to a single state organ, wh ich exercises jurisdictional

activity, of the duty and power to act as a constitutional judge. This is the essence of

the concentrated character of the system, contrasted with the diffuse system, whether

the organ with constitutional justice pow er is the highest court of the judiciary or is

a special constitutional body created outside the ordinary judicial organisation, not

being essential to the distinction.

1. Logic of the System

From a logical and rational point of view, it can also be said that this power

assigned to on e state organ with jurisdictional activity to act as constitutional judge,

is a consequence of the p rinciple of the supremac y of the Constitution. In these

systems of concentrated constitutional justice, the Constitution being the supreme

law of the land, in cases of conflict between a state act and the Constitution, it is

obvious that the latter must also prevail. But the constitutional system, in these

1M. CAPPELLETTI,Judicial Review in the Contemporary World, Indianapolis 1971, pp. 50󰜔53.

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ALLAN R. BREWER󰜔CARÍAS

cases, does no t always empower all courts to act as constitutional judges, and in

certain cases, it reserves the power to act as a constitutional judge to the Supreme

Court of Justice or to a special constitutional court par ticularly re garding certai n

acts of the state, which in cases of contradicting the Constitution, only the supreme

court or the constitutional court has the power to annul it.

Therefore, it can be said that, in general terms, the logic of the system is also

the supremacy of the constitution and the duty of the courts to say which law i s

applicable in a particular case, 2 but with a concrete limitation: the power to judge

the unconstitutional ity o f le gislative acts and other state acts of similar rank or

value is reser ved to the Supreme Court of Justice or to a Constitutional Court or

Tribunal. Thus, in the concentrated system of judicial review, all courts only have

the power to act as a constitutional judge and to decide upon the constitutionality

of the other norms appli cable to the case, other than statutes or acts adopted in

direct execution of the Constitution.3

Consequently, the concentrated system of judicial review, based on the same

principle of the supremacy of the Constitution, when reserving constitutional justice

func tions re gardin g certain state ac ts, to the S upreme C ourt or to a specia l

Constitutional Court, cann ot be developed by deduction through the work of the

Supreme Court decisions, like it happened in the diffuse system of judicial review ,

as was the case for example, of the United States of America, the Republic of Argen-

tina and some Commonwealth countries.

On the contrary, of course, due to the limits that the system imposes on the

duty and power of all judges to say wh ich law is applicable in the cases they are to

decide, only when prescribed expressis verbis through constitutional regulations is it

possible to establish the concentrated system of judicial review. It is the constitution,

as the supreme law of the land, the only text that can establish limits upon the

general pow er and duty of all courts to say which is the law applicable in a parti-

cular case and assign that power and duty in certain cases regarding certain state

acts, to a specific constitutional body, whether it be the Supreme Cour t of Justice or

a constitutional court or tribunal.

Therefore, the concentrated system of judicial review can only be a jurisdictional

system established and regulated expressly in the constitution, and the state organs

to which the constitution reserves the power to act a s constitutional judges regarding

certain sta te acts, are always co nstitutional bod ies, that is to say, state or gans

expressly created and regulated in the constitution whether they be the Supreme

Court of Justice of a given country or a specially created constitutional court, tribu-

nal or council.

2. Compatibility of the System with all Le gal Systems

Con seq uent ly, t he c once ntra ted s yste m of j udi cial rev iew o f th e

constitutionality of legislation is not a system that can be considered peculiar to the

2Cf. W .K. GECK «Judicial Review of Stat utes: A Comparative Survey of present Institutions and

Practices», Cornell Law Quarterly, 51, 1966, p. 278.

3Cf. M. GARCÍA PELAYO, «E1 󰜙Status󰜚 del Tribunal Constitucional», Revista española de derecho constitu-

cional, 1, Madrid 1981, p. 19; E. GARCÍA DE ENTERRÍA,La Consti tución como norma y el Tribuna l

Constitucional, Madrid 1981, p. 65. In particular, in concentrated system of judicial revi ew, the

tribunals or courts empowered with administrative justice functions have always the pow er of

acting as constitutional judge regarding administrative acts. See C. FRANK,Les functions juridictionnelles

du Conseil d󰜚État dans 1󰜚ordre constitutionnel, Paris 1974.

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civil law system of law, a nd incompatible with the common law tradition. It is only

a system that must be expres sly established and regulated in a written Constitution

and it can therefore indifferently exist in systems with a common law tradition or

with a civil law basis, though it is most commonly followed in civil law countries.

For instance, in Papua New Guinea, a country that gained its independence

from Australia in 1975 a nd, therefore, with a common law tradition, the Constitution

gives the Supreme Court exclusive jurisdiction over questions of interpretation and

application of constitutional law, subject to the Constitution. Therefore, when such

a question arises in any court or tribunal, it sha ll be referred to the Supreme Court.4

In a similar sense, the 1966 Constitution of Uganda also established an exclusive

jurisdiction of the High Court on constitutional matters. In this respect, article 95

stated that:

«Where any question as to the interpretation of this Constitution arises in any

proceedings in any court of law, other than a court󰜔martial, and the court is of

the opinion that the question involves a substantial question of law, the court

may, and shall if any party to the proceedings so reques t, refer the question to

the High Court consisting of a bench of no less than three judges of the High

Court».

The same article added:

«Where any ques tion is referred to the High Court in pursuance of this article,

the High Court shall give its decision upon the question and the court in

which the question arose, sha ll dispose of the case in acco rdance with that

decision».5

We must also refer to the system established in Ghana in the 1960, 1969 and

1979 Constitutions, which vested the Supr eme Court with original and exclusive

jurisdiction to exercise the power of judicial review. In effect, article 42 of the 19 60

Constitution a nd article 106 of the 1969 Constitution stated:

«The Supreme Court shall have or iginal jurisdiction in all matters where a

question ar ises whether an enac tment was made in excess of the pow ers

conferred on Parliament by or under the Constitution, and if any such question

arises in the High Court or an inferior court, the hearing shall be adjourned

and the question referred to the Supreme Court for decision». 6

Additionally, article 2 of the 1969 Constitution established a direct action that

could be brought before the Supreme Court to seek judicial review, as follows:

«A person who alleges that an enactment or anything contained in or done

under the authority of that or any other enactment is inconsistent with, or in

contravention of, a ny provision of this Con stitution, may bring an action in

the Supreme Court for a declaration to that effect».7

4Art. 18 and 19 of the Co nstituti on. See in J.D. WH YTE,Ju dicial Rev iew of Legisla tion and its

Legitimacy:Developments in the Common Law World , IALS, Uppsala, Colloquium 1984, (mimeo), p.

25.

5See in T.M. FRANCK,Comparative Constitutional Process.Cases and Materials, L ondon 1968, pp. 75󰜔76.

6See in S. O. GYAND OH Jr., «Interaction of the Ju dicial an d Legisl ative Proc esses in Ghana since

Independence», Temple Law Quarterly, 56, 2, Philadelphia 1983, pp. 365󰜔366, 370.

7Idem, p. 370.