The foundation of judicial review of the constitutionality of legislation

• 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: 145-191

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JUDICIAL REVIEW IN COMPARATIVE LAW

PART THREE

THE FOUNDATION OF JUDICIAL REVIEW OF

THE CONSTITUTIONALITY OF LEGISLATION

I. THE LIMITED STATE ORGANS AND JUDICIAL REVIEW

Judicial review of constitutionali ty is the power of the courts to control the

conformity with the cons titution of acts of state, particularly of legisla tive a cts,

issued in direct execution of the constitution.

Therefore, in principle, judicial review can only exist in legal systems in which

there is a written constitution, imposing limits on the state organs󰜚 activities a nd

within such organs, on Parliament in particular. As a result, the power of the courts to

control the constitutionality of state acts is not necessarily a consequence of the sole

judicial power, but of the legal limitations imposed on state organs, particularly on

Parliament and on the government, in a constitution established as a supreme law.

In this sense, judicial review of the constitutionality of state acts is the ultimate

consequence of the consolidation of the État de Droit where the state orga ns are not

sovereign, are subjec t to limits impo sed by a constit ution having the force of a

superior law, an d i n par ticular, when the legislato r is lim ited in his legislative

action and there is judicial control over the «legality of laws».

Professor Paul Duez s tressed the argument a few decades ago in an article

published in the Mélanges Hariou when he wrote:

«Mode rn Public La w establish es as an axio m that Govern ments are no t

sovereign and that in particular, the Parliament is limited in its legislative

action by super ior legal rules, that it could not infringe; Acts of Parliament

are submitted to the law , and no Act of Parliament can be contrary to the

law».1

This is the principle accepted today in France but certainly not the one a ccepted

in that country sixty years ago when Professor Duez wrote his essay and when the

principle of the sovereignty of the National Assembly was still in force. That is

why this article is of historical importance in France. In effect, Professor Duez, by

establishing the principle of the limitation of all state organs by a constitution as a

superior rule, added:

1P. DUEZ, «Le contrôle juridictionnel de la constitutionalité des lois en France», Mélanges Hauriou,

Paris 1929, p. 214.

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ALLAN R. BREWER󰜔CARÍAS

«But it is not sufficient to procla im such a principle: it must be organized, and

practical a nd effective measures, must be adopted to ensure it».2

Subsequently , h e r eferred to the very important French sys tem of j udicial

control related to public administration and to administrative action, through the

recours p our excès de pouvoir; nevertheless, h e said:

«The spirit of legality requires that a similar control be established in relation

to legislative action».3

And concluded by saying that,

«There is not a real organized democracy, and a Legal state (État de Droit),

except only where this control of legality of laws (Acts of Parliament) exists

and functions». 4

The lo gic of Pro fessor D uez󰜚s st atement i n our pers pective is certai nly

impeccable: No orga n of the and state can be considered sovereign; and all state

organs, particularly, the legislator in its actions are submitted to limit established

in superior rules, embodied in a constitution.

Therefore, acts of Parliament must always be s ubmitted to the law, and cannot

be contrary to the law. Consequently, the spirit of legality impos es the existence

and functioning not only of a control of legality of administrative acts, but also of

a control of the leg ality of laws, as acts of Parliament. Only in countries where this

control exists, are ther e truly organized democracies and État de Droit.

Therefore, this judicial control of the «legality of laws» is, precisely, the judi-

cial control of the constitutionality of legislation a nd of other state acts issued in

dir ect ex ecuti on o f the cons titu tion , in rela tion to w hich leg alit y mea ns

«constitutionality». Thus, there is the existence of judicial review of constitutionali ty

that we are now going to study.

This judicial review of constitutionality is normally possible, of cour se, not

only in those le gal systems that have a written co nstitution as a supre me rule

embody ing the fundam ental values of so ciety, but whe n t hat superior r ule is

established in a rigid or entrenched way, in the sense that it cannot be modified by

ordinary legislation. In principle, it is in a system of this kind that all the organs of

the state are limited by and subject to the constitution and must therefore pursue

their activities according to this supreme law.

This imp lies there fore, that no t o nly are the tr aditiona l s tate organ s for

executing the law 󰜔the administration and the judges󰜔 subject to the law (Constitution

and «legislation»), but that the organs which create the «legislation», particularly

the legislative bodies, are also subject to the constitution.

Of course, a written and rigid constitution, situa ted a t the apex of a legal

system, not only demands that all the acts issued by state organs in direct execution

thereof should not violate the constitution, but must also provide a gua rantee to

prevent or s anction such violations.5 Thus, the judicial review of constitutionality

2Idem, p. 214.

3Idem, p. 215.

4Ibid. p. 215.

5Cf. H. KELSEN, «La garantie juridictionnelle de la Constitution (La Justice constitutionnelle)» Revue

du droit public et de la science politique en France et à l󰜚étranger, T. XLV, 1928, p.197󰜔257.

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JUDICIAL REVIEW IN COMPARATIVE LAW

as the power of the judiciary to control the submission of state organs to the supe-

rior rule of the country.

1. Execution of the Constitution and Control

Anyway, we have said a hierarchy of rules exists in all legal syst ems with

written and rigid Constitutions.

Evidently, not all state acts have, therefore, the same level of derivation in

creati ng legal rule s. There are ac ts that direc tly and immedia tely execut e the

constitution, and that are subject to this superior rule alone; there are also state acts

which execute the con stitution in an indirect way, bein g a t th e s ame time acts

issued in direct and immediate execution of «legislation», thus directly subject to it.

Among the former are, basically, the formal laws and other acts of Parliament and

acts of government issued in accordance with their constitutionally attributed powers;

and a mong the latter, there are the administrative and the j udicial acts.

In a État de Droit then, the guarantee of the rule of law must be established at

the two mentioned levels of creation or derivation of legal rules by way of three

judicial systems of control: first, the judicial review of constitutionality, established

to control state a cts issued in direct execution of the constitution; second, the judi-

cial control of administrative action basica lly established regarding administrative

acts; and concerning judicial acts issued by co urts, the judicial control system is

thirdly established by systems of appeal or cassation.

Moreover, in the État de droit,which implies that in the constitution fundamental

rights and liberties are established, judicial mechanisms of control must also be provided

to protect and guarantee suchrights against any act by the state that may violate them,

and even against acts by individuals which may so affect them.

Our objective, in the subsequent parts of this course is to analyze the first of

the se sys tems o f judi cial c ontro l prev iousl y ment ioned , jud icial revie w of

constitutio nality, which, we insist, fun damentally refers to the acts of the state

constitutional organs, in which the rule of law becomes the «rule of the constitution»;

since they are acts that execute the constitution itself, directly and immedia tely.

2. State Acts Submitted to Control

Therefore, one of the acts subject to jud icial review of const itutionality are

formal laws or acts of Parliament, and it is precisely because of this that judicial

revie w of consti tutional ity is often i dentifie d with the j udicial re view of the

constitutionality of legislation.6 Howe ver, laws are not the only s tate acts issued in

direct e xecution of the constitution, and as an expression of constitutional powers.

So too are other acts of Parliament, such as internal parliamentary rules of procedure

and even other parliamentary acts that do not have the form of law and that are not

normative, such a s tho se e stablished in the constitution rega rding the relations

between the Congress or Assembly and the other constitutional or gans of the state.

All these acts adopted by Parliament a re subject to the constitution because they are

issued by virtue of powers attributed directly in that fundamental text. Thus, in a

État de droit they must a lso be liable to judicial review of constitutionality.7

6See, for example, M. CAPPELLETTI,Judicial Review in Contemporary World, Indianapolis 1971, p. VII.

7Cf. H. KELSEN,loc. cit., p. 228.