■ Freedom from Judicial Review
The ability of a judicial body to prevent the passage or enforcement of laws which do not comply with the demands of the constitution provides a powerful means of preserving the integrity of constitutional principles. At the same time, the process of judicial review places a limit on the legislature’s law-making authority and therefore represents a decrease in legislative control. While some legislatures pass laws that are free from outside scrutiny, in most countries laws are subject to judicial review in one of its many forms. The judicial body that is competent to review the legislation varies from country to country as well, but often follows a pattern related to whether it follows a common law system or a civil law system. In some countries the entire judiciary has the power of judicial review and may refrain from applying a law deemed to be unconstitutional; in others only a designated body or the highest court may void laws on constitutional grounds.
Provisions
Constitution of the <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Republic of Guinea-Bissau (1984, as Amended to 1991)<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Article 56The following shall be incumbent upon the National Popular Assembly:5. to decide on the constitutionality of laws, laws-by-decree, and other legislation;6. to approve, modify, or annul legislation and other measures adopted by organs of the State that are contrary to this Constitution and laws;Article 981. Cases placed before the courts may not apply rules that infringe upon the provisions of the Constitution or principles herein consecrated.2. The question of unconstitutionality may be raised officially by a court, by the Public Ministry, or by any of the parties.3. Whenever a question of unconstitutionality is raised, the incident shall be separately submitted to the National Popular Assembly, which shall decide the matter.4. All decisions made by the National Popular Assembly regarding unconstitutionality shall be generally mandatory and shall be published in the Official Bulletin.
Provisions
The Constitution of the Republic of Finland (2000)Section 74 Supervision of constitutionalityThe Constitutional Law Committee shall issue statements on the constitutionality of legislative proposals and other matters brought for its consideration, as well as on their relation to international human rights treaties.
Provisions
The Constitution of the Republic of El Salvador (1983, as Amended to 2003)Article 138When a bill of law is returned because the President of the Republic considers it to beunconstitutional and the Legislative Organ ratifies it in the manner established in the preceding article, the President of the Republic shall present it to the Supreme Court of Justice within three business days, so that the latter may, after hearing the arguments of both sides, decide whether it is or is not constitutional, within fifteen business days at the latest. If the Court decides that the bill is constitutional, the President of the Republic shall be obligated to sanction it and to order its publication as law.
The Constitution of the Republic of South Africa (1996, as Amended to 2007)Section 80 Application by members of National Assembly to Constitutional Court(1) Members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is unconstitutional.Section 84 Powers and functions of President(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.(2) The President is responsible for—(c) referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality;
Provisions
The Constitution of the French Republic (1958, as Amended to 2005)Article 46(5) Organic laws shall not be promulgated until the Constitutional Council has declared their conformity with the Constitution.Article 61Organic laws, before their promulgation, and the rules of procedure of the parliamentary Assemblies, before their entry into force, must be referred to the Constitutional Council, which shall rule on their conformity with the Constitution.To the same end, Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or sixty deputies or sixty senators.'The Constitution of the Democratic Socialist Republic of Sri Lanka (1978, as Amended to 2001) Article 80(3) Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.Article 120 Constitutional jurisdiction of the Supreme Court.The Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution. …
Provisions
The Constitution of the Republic of Korea (1948, as Amended to 1987)Article 107(1) When the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court, and shall judge according to the decision thereof.(2) The Supreme Court shall have the power to make a final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.(3) Administrative appeals may be conducted as a procedure prior to a judicial trial. The procedure of administrative appeals shall be determined by statute and shall be in conformity with the principles of judicial procedures.
The Instrument of Government of the Kingdom of Sweden (1974, as Amended to 2002)Chapter 11, Article 14If a court or other public body finds that a provision conflicts with a rule of fundamental law or other superior statute, or finds that a procedure laid down in law has been disregarded in any important respect when the provision was made, the provision may not be applied. If the provision has been approved by the Riksdag or by the Government, however, it shall be waived only if the error is manifest.
The Constitution of Japan (1947)Article 81The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.
The Constitution of the Republic of the Philippines (1986)ARTICLE VIII Judicial DepartmentSec. 4. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.Sec. 5. The Supreme Court shall have the following powers:(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in.(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
The Constitution of the Republic of South Africa (1996, as Amended to 2007)172 Powers of courts in constitutional matters(1) When deciding a constitutional matter within its power, a court—(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and(b) may make any order that is just and equitable, including—(i) an order limiting the retrospective effect of the declaration of invalidity; and(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.(2) (a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.(b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.(c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.(d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.
The Constitution of the United States of America (1787, as Amended to 1992)ARTICLE. III.SECTION. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States will be a party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
