Constitutional review, or constitutionality review or constitutional control, is the evaluation, in some

countries A country is a distinct part of the world, such as a state (polity), state, nation, or other polity, political entity. It may be a sovereign state or make up one part of a larger state. For example, the country of Japan is an independent, so ...

, of the

constitutionality Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...

of the

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

s. It is supposed to be a system of preventing violation of the rights granted by the constitution, assuring its efficacy, their stability and preservation. There are very specific cases in which the constitutional review differs from

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

to civil law as well as

judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...

in general. Written and rigid constitutions exist in most countries, represent the supreme norm of the juridical order, and are on the top of the pyramid of norms. Also called ''fundamental law'', ''supreme law'', ''law of the laws'', ''basic law'', they have more difficult and formal procedures to updating them than other laws, which are ''sub-constitutional''. The term "constitutional review" is usually characterized as a Civil Law concept, but some of the ideas behind it come from Common Law countries with written constitutions. For instance, the USA was the first country to adopt judicial review based directly on its

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...

(see '' Marbury v. Madison''), even though to this day the functions of the Constitutional Court and of the Court of the Last Resort are separated at neither Federal nor State level in the United States. The judicial control of constitutionality applies to normative acts as well.

Control systems

Depending on how each country decides to organize his constitutional reviews, it can be attributed to a different organ. In some countries, part of the review can be attribution of a political organ. For instance, In Brazil, the declaration of unconstitutionality in a concrete case by the Supreme Federal Court (STF) can be suggested to senate to give to this declaration global effects.

Bans on constitutional review

Countries can put a ban on constitutional review.

Ban on constitutional review in the Netherlands

The constitution of the

Netherlands ) , anthem = ( en, "William of Nassau") , image_map = , map_caption = , subdivision_type = Sovereign state , subdivision_name = Kingdom of the Netherlands , established_title = Before independence , established_date = Spanish Netherl ...

explicitly forbids courts to rule on the constitutionality of laws passed by

parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...

. Reason for banning constitutional review in the Netherlands is that it would put the judiciary in a legislative position, which conflicts with the idea of

Separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typi ...

. Dutch parliament is responsible for adherence of laws it passes to the constitution. The

Supreme Court of the Netherlands The Supreme Court of the Netherlands ( nl, Hoge Raad der Nederlanden or simply ''Hoge Raad''), officially the High Council of the Netherlands, is the final court of appeal in civil, criminal and tax cases in the Netherlands, including Curaça ...

has ruled that this ban on constitutional review also extents to rulings on the creation of laws, rulings based on the Charter for the Kingdom of the Netherlands and general principles of law. The

monist Monism attributes oneness or singleness (Greek: μόνος) to a concept e.g., existence. Various kinds of monism can be distinguished: * Priority monism states that all existing things go back to a source that is distinct from them; e.g., i ...

Constitution of the Netherlands The Constitution for the Kingdom of the Netherlands ( nl, Grondwet voor het Koninkrijk der Nederlanden) is one of two fundamental documents governing the Kingdom of the Netherlands as well as the fundamental law of the European territory of the ...

does explicitly allow the review of laws by treaties that contain provisions binding all members. Consequently, treaties like the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...

in practice have taken constitutional review-like effect.

References

{{Authority control Judicial review

Control systems

Bans on constitutional review

Ban on constitutional review in the Netherlands

See also

References