The mixed 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: 343-414

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JUDICIAL REVIEW IN COMPARATIVE LAW

PART SIX

THE MIXED SYSTEMS OF JUDICIAL REVIEW

As we have seen, the syste ms of j udicial review followe d i n c omparative

constitutional law can be classified into two main groups: the diffuse systems of

jud icial re view, i n whic h all cou rts ha ve the po wer and duty to j udge th e

constitutionality of legislation and to decide not to apply statutes when they deem

them unconstitutional; and the concentra ted systems of judicial review, in which

the powe r to declare the u nconstituti onality of st atutes and to ann ul them is

attributed to a single constitutional organ, either the Supreme Court of the country

or a specially created Cons titutional Court. In general, with their own particular

trends, and as a consequence of the principle of the supremacy of the constitution,

all the countries in the world wi th written and rigid constitutions have adopted one

or other system.

Never theless, i n accordan ce with thei r general t rends, an d having the ir

common basis in the principle of the supremacy of the Constitution, those systems

of judicial review of the constit utionality of legislation are not only compa tible

with all legal syst ems thus existing and functionin g, either in countries with a

common or Roman law tradition. Moreover, they can coexist in a particular country,

giving rise to what we have called the mixed system of judicial review in which the

maximum protec tion of the Constitution is establis hed, at least formally in the

Fundamental Charter. In Europe, a mixed system of judicial review exists in Portu-

gal a nd in a more limited way in Switzerland, and many of the countries in Latin

America follow this mixed pattern, as are the cases of Colombia, Venezuela, Guate-

mala a nd Brazil.

I. CONTROL OF CONSTITUTIONALITY IN THE PORTUGUESE REPUBLIC

The Cons titution of the Re public of Portug al approved by a Co nstituent

Assembly i n April 1976 established the basis of a mixed system of judicial review

of the constitutionality of l egislation, in which the Council of the Revolution, its

Constitutional Commission and the ordinary courts played a very important role,1

giving birth to the most complete system of judicial review in Europe, in which the

basic elements of the European model and of the French system were adopted in

1See in general J. CAMPINOS,La Constitution portugaise de 1976 et sa ga rantie, UNAM, Congreso sobre

La Constitución y su Defensa, (mimeo), México, Agosto 1982; M.GONZALO, «Portugal; El Consejo de

la Revolución, su Comisión Constitucional y los Tribunales ordinarios como órganos de control de

la constitucionalidad», Boletín de jurisprudencia constitucional, Cortes Generales, 8, Madrid 1981, pp.

630, 64 0.

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ALLAN R. BREWER󰜔CARÍAS

parallel with elements of the diffuse system of judi cial review. That mixed system

of judicial review was maintained in the First Revision of the Constitution approved

by the Constitutional Law Nº 1/82 of 30th September 1982,2 in which it is regulated

as we said, by w hat can still be considered today, the most complete system of

judicial review in Europe.

1. The principle of Constitutional Supremacy and its Consequences

The 1982 Constitution is not only a written and rigid Constitution, 3 but is

expressly conceived as the supreme law of the Lander, to which all other state acts

must be submitted. In this respect, Article 3 of the Constitution states:

«The state shall be subject to the Constitution and based on democratic legality.

The validity of the la ws and other state acts of the autonomous r egions and

local authorities shall depend on their being in accordance with the Constitution».

The consequence of this supremacy clause is also expressly established in the

text of the Constitution, in which article 277 states:

«Provisions of law that infringe a provision of the Constitution or the principles

laid down therein are unconstitutional».

Therefore, the supremacy of the Constitution and of the principles laid down

in its provisions implies that laws and state acts contrary to them are unconstitutional

and thus , invalid. Of course, the consequence of this assertion is the establishment

of a complex system of judicial review of the constitutionality of state acts, in whi ch

a diffus e system exis ts in parallel w ith a concentr ated system at tributed to a

Constitutiona l Cou rt.

The Constitutional Court» was created by the Constitution, within the judicial

pow er, 4 as a con stit utio nal o rga n «co mpet ent to jud ge w heth er a cts a re

unconstitutional and illega l» in accordance with its provisions» 5 and also competent

to judge questions rela ted to the exercise of i ts functions by the President of the

Republic and to electoral matters.6 The Constitutional Court is composed of thirteen

judges, ten being named by the Assembly of the Republic and three co󰜔opted.7

2. Diffus e syst em of judic ial re view a nd the dire ct app eal be fore the

Constitutional Court

In accordance with article 207 of the Constitution

«The Courts shall not apply unconstitutional provisions or principles to matters

brought before them».

This constitutional provision authorises all the courts of the country not to

apply unconstitutional provisions or principles, which comprise not only statutes,

but also decree󰜔laws, executive regulations, regional acts or any other nor mative

2Published in the Diario da Republica, 1st series, Nº 227.

3Article 290 establishes material limits to constitutional revision.

4Art. 21 2.

5Art. 213,1.

6Art. 213,2.

7Art. 28 4.

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JUDICIAL REVIEW IN COMPARATIVE LAW

state acts, including international treaties. Therefore, the Constitution establish es

the power of all c ourts not to apply norms the y d eem unconstituti onal in the

concrete case, and also a real duty to do so. Thus, it is a power that can be exercised

ex󰜔officio by any court although any party in the concrete case or the Public Prosecutor

can raise the constitutional question.

The control of the constitutionality of legislation, therefore, is a diffuse con-

trol attributed to all courts regarding the concrete cases in which the issue is raised,

and which the courts must resolve when deciding the case. Thus, when they consider

a norm unconstitution al, the n orm is c onsidered invalid regardi ng t he co ncrete

case, that is to say, with inter partes effects as well as ex󰜔tunc,pro praeterito effects, in

the sense that regarding the case and the concr ete p arties, the normative act is

considered as never having been valid.

However, in the Portuguese constitutional systems, the most interesting feature

of this diffuse sys tem of jud icial review, is the direct appeal established before the

Constitutional Court aga inst judicial decisions in which constitutional ques tions

are decided, in a similar way to the extraordinar y recourse of unconstitutional ity,

in the Argentinean and Brazilian systems or to the direct appeals before the Supreme

Court in the United States.

In effect, in what is called the «concrete scrutiny for the constitutiona lity»

following West German terminology, but in a very different way to the «concrete

control of norms» developed by the West German Federal Constitutional Tribunal,

article 280 of the Portuguese Constitution establishes the right to appeal before the

Constitution al T ribunal against any court decisi ons when they firstly, refuse to

apply a ny provision of law on the grounds that it is unconstitutional: or secondly,

when they apply a provisi on of a law the unconstitutionality of wh ich has been

raised during the proceedings.8

This appeal must be compulsory exercised by the Department of the Public

Prosecutor in cases in which a court of justice refuses to apply any provision of an

international conventi on, a legi slative act or a regulati ve decr ee on the grounds

that it is unconstitutional.9 But in cases in which a court applies a provision of law

the unconstitutionality of which has been raised by a party during the proceeding,

then only that party has the right to appeal before the Constitutional Court.10

But the powers of the Constit utional Court to hear appeals agai nst lower

court decisions in Portugal are not limited to constitutional control, but to diffuse

control of legality, in the following cases:

First, when the courts r efuse to apply a provision of a regional instrument on

the ground s that it is illegal since it violates the statute of the autonomous regions

or general law of the Republic; second, when the courts refuse to apply a provision

of an instrumen t emanating from an organ of supreme authority on the grounds

that it is i llegal since it violates the statutes of an autonomous region; and thirdly,

when the court applies a provision the illegality of which has been raised during

the proceeding s o n th e gr ounds of violating regional aut onomies. In this latter

case, only the interested party which raised the question has the right of appeal. 11

8Art. 280,1,a,b.

9Art. 280,2.

10 Art. 280,4.

11 Art. 280, 3,a,b, c; 280,4.