1. law, govt and politics

JUDICIAL REVIEW AND HUMAN RIGHTS
Heringa/ Kiiver: 2009
The term ‘judicial review’ means that a judge can examine a law, or other object of
scrutiny, and check its compatibility with a higher norm. Thus, a judge may, depending
on the system, test whether a regional law is in harmony or in conflict with a higher,
national law. If the lower law provides rules that go against the provisions of the higher
law, then the judge, if he has review power, may establish a conflict. Similarly, he may
check whether an administrative decision by a public authority complies with the
authorizing general legislation. He may further, again depending on the system, examine
the validity of a national statute by setting it against the national constitution, an exercise
called constitutional review of legislation. In some systems, he may review the
constitutionality of political parties. He may review the compatibility of national law with
general principles of law, such as proportionality, or with an international treaty, such as
the European Convention on Human Rights. Conversely, he may also, where applicable,
check the compliance of treaties or acts of international organizations with the national
constitution. Judicial review is thus a court’s power to detect conflicts in law, and
possibly to attach consequences to resolve the conflict.
Three subjects shall be discussed here in greater detail. First, constitutional review of
legislation, pertaining to the constitutionality of statutes made by the central or national
lawmaker; second, review of such legislation for treaty compliance, in particular for
compliance with the European Convention on Human Rights where applicable; and
review of legislation for compliance with the law of the European Union, including the
reverse scenario of the review of the constitutionality of European law.
Constitutional Review of Legislation
There are few issues where the same doctrinal arguments can lead to such differing
results across constitutional systems like the issue of constitutional review of legislation. While the right of judges to declare laws unconstitutional is perceived to be
acceptable, normal and perhaps even natural in some systems, in other systems this right
is fiercely contested. The two arguments typically brought forward to justify the right for
judges to review the constitutionality of legislation are, first, that judicial review
guarantees the supremacy of the constitution and, second, that judicial review provides a
check on the lawmaker for the protection of minorities.
The first argument stresses that the constitution is the highest norm in a legal system, and
that all other law derives from its authority. Thus, legislation should not be allowed to
violate the constitution. Supporters of judicial review would argue that, consequently,
judges should refuse to apply normal statutes if they violate the constitution. Having a
constitution but no constitutional review powers for the courts would, in that view, be
pointless, since the lawmaker could violate the constitution with impunity. Hans Kelsen,
an Austrian scholar credited with designing the prototype of a continental European
constitutional court in 1920, argued that laws derive their authority from their compliance
with higher law, that non- compliant laws cannot be normative and that a constitution
cannot be supreme unless it is enforced by judicial review of legislation. US Supreme
Court chief justice Marshall had already stated that judicial review necessarily follows
from the supremacy of the Constitution in 1803.
However, one may equally argue that the constitution can very well be supreme, but that
this supremacy does not mean that judges should be able to frustrate the will of the
lawmaker. The lawmaker should simply take account of the constitution when passing
statutes in the first place, and make the right choices himself, subject as he is to
democratic oversight from the voters. The Netherlands subscribes to such ‘optimist’
school of thought, putting trust in democratically elected office-holders rather than in
unelected judges. In France, immunity of legislation results from the sovereignty of the
people whose representatives adopt laws (although France did introduce constitutional
review in 2008 after all, and a Dutch proposal to allow the same is pending).
The second argument holds that checks and balances are necessary to provide a
counterweight against the majority of the day. Democracy is not the same as tyranny of
the majority, it also includes the protection of minorities. In the rule of law, minorities
can find such protection as even the majority is bound by law. At the same time,
especially in the US, this very counter-majoritarian character of judicial review is often
perceived as problematic, especially where judges are suspected of pursuing their own
political agenda against the preferences of the elected institutions.
There are more examples how it is possible to invoke the same principles and arrive at
opposite conclusions regarding the justification of judicial review. Separation of powers,
the notion that legislature and judiciary should be kept apart, can be construed as
meaning that courts should apply the law, not criticize or second- guess it. This is the
traditional French reading of such separation, namely the separation of the judiciary from
the legislature. Yet separation of powers can also be taken to include the notion of checks
and balances, so that it would appear healthy to have a judicial check on the lawmaker.
Legal certainty would command that statutes, once in force, should stand until they are
repealed, without courts casting doubt on their validity; citizens should however also be
able to rely, with certainty, on their constitution, which should always triumph over
conflicting legislation. One might say that judges should not be trusted, and not be given
too much power, because they are, after all, not elected; one might equally argue that
judges are trustworthy because they are not elected, and that they can have a more
objective and professional view on constitutionality questions compared to political and
majority-driven lawmakers. The rule of law can be seen as a principle which judges are
qualified to enforce, as they are trained to interpret written law in practice. Conversely,
one may argue that there cannot possibly be only one ‘correct’ or ‘orthodox’ meaning of
constitutional provisions, and that there is no reason to assume that the interpretation
given by judges is any better than the interpretation given by lawmakers.
The Procedural Setting of Constitutional Review
In those systems which do feature constitutional review of legislation, it is possible to
classify different models under different headings. Systems differ most fundamentally in
whether their constitutional review is:
abstract or concrete;
ex ante or ex post;
centralized or decentralized.
Concrete review of legislation means the verification whether a law that is about to be
applied in adversarial judicial proceedings is actually constitutional. It arises out of a
concrete dispute between two parties before a court. In abstract review, a law is submitted
to scrutiny outside the context of an actual application in a dispute; it is typically
triggered by office-holders, such as the government. Ex ante review takes place before
the law has entered into force, and strictly speaking it targets bills rather than existing
legislation; ex post review subjects legislation in force to judicial scrutiny. In
decentralized systems of review, any court may check the constitutionality of legislation;
in centralized systems, a special constitutional court or quasi- judicial body exists to carry
out this task.
Modern notions of constitutional review are rooted in a historical break- through within
American constitutional law. In 1803, the US Supreme Court had held that the US
Constitution had to prevail over ordinary legislation, and that it followed from their
professional tasks that in the course of proceedings before them judges should detect
whether different applicable norms conflict with each other. As a result, all courts in the
US have the power to verify whether legislation that they are about to apply is at all
constitutional. This construction rules out abstract review or the review of bills in the
form of advisory opinions or otherwise, because that would take place outside the context
of an actual court case and would thus not fall within the professional tasks of the
judiciary.
Germany, like many other states in Central, Southern and Eastern Europe, features a
special constitutional court that carries out review functions. The system is called the
continental, Austrian or Kelsenian model of judicial review. These systems allow courts
to examine the constitutionality of statutes, but keep the power to invalidate these statutes
centralized in one constitutional court set up specifically for that purpose. Review is
therefore decentralized when arising from concrete cases, but the final decision on
constitutionality is centralized. In addition, Kelsenian systems typically allow
constitutional courts to engage in abstract review of legislation upon request from
enumerated state institutions.
France was long famous for having a system whereby laws could only be reviewed
before they had entered into force. This task was carried out by the Constitutional
Council. The Council was not strictly a court as it was not necessarily staffed by lawyers
and did not hear individual cases, but was usually nevertheless considered to belong to
the larger family of constitutional courts in Europe. Since the constitutional reform of
2008, France allows its two supreme courts to refer questions regarding the
constitutionality of statutes to the Constitutional Council as well. Thus, in addition to its
ex ante review in the abstract, France now also features concrete review ex post.
In the United Kingdom, constitutionality review of statutes would be difficult, since there
is no central document that would codify the most fundamental rules governing the state
to start with; furthermore, second-guessing Parliament would mean to violate one of the
most important principles of the UK constitution itself, namely parliamentary sovereignty
in the sense of legislative supremacy. Thus, Parliament and only Parliament can unmake
a statute. The Netherlands explicitly prohibits its judges from questioning the
constitutionality of statutes, although an amendment to allow review on enumerated
grounds has been adopted in first reading in 2008.
What exactly is the consequence of a judicial decision stating that a statute is
unconstitutional? Often terms are used interchangeably: the court invalidates the statute,
quashes it, strikes it down, annuls it, declares it void, disapplies it, sets it aside, etc. Two
principal effects should be distinguished, however. ‘Disapplication’, ‘invalidation’ or
‘setting aside’ means to leave the statute as it stands, but to refrain from applying it to a
particular case. ‘Annulment’ or ‘declaring void’ carries further- reaching consequences. It
means that the statute is struck out and ceases to exist, as it were. One might compare it
to an annulled contract. The legal fiction is then even that it in fact never has existed,
although typically retroactive effects of the annulment of statutes are limited in order to
preserve legal certainty. The German Constitutional Court can declare a statute void; the
judgment itself then carries the rank of a repealing statute and is published as such. In the
US, since all constitutionality review is decentralized and concrete, unconstitutionality
means disapplication in concrete cases; however, once the US Supreme Court has found a
statute in violation of the Constitution, a common-law precedent is established so that in
the future all other courts will have to disapply the statute as well. One might say that in
this case ‘setting aside’ and ‘declaring void’ boils down to the same thing, namely that
the statute loses all practical effect. The legal construction nevertheless is different, since
a void statute disappears whereas a statute that is set aside is technically still in force.
Review of Treaty Law Compliance
A subject often associated with judicial review as regards constitutionality is judicial
review as regards compliance of statutes with international treaty provisions. After all,
here again judges would test legislation for their compatibility with a higher norm; and
yet again, the question arises whether treaty law really is ‘higher’ in rank, and what the
consequence of that would be. International treaty provisions gain particular relevance
when human rights are to be derived from them in a domestic setting. The European
Convention on Human Rights, a multilateral human-rights instrument, is a case in point.
The domestic effect that states give to treaty provisions essentially depends on whether
they adhere to a monist or dualist model.
In a monist system, national statutes and provisions from treaties ratified by the state are
treated as forming part of one and the same national legal order, hence the term monism.
This allows individuals to invoke treaty provisions before a national court, in the same
manner as they would invoke national law. If a conflict arises between national law and a
treaty provision, the latter prevails. Under dualism, meanwhile, national law and treaties
are treated as falling under two separate realms. Individuals can invoke national
provisions only; in order to profit from treaty provisions, they would have to wait until
their lawmaker has transposed them into national law, in pursuance of the state’s
international obligations.
The case for embracing monism is straightforward. The argument would be that it is
pointless to have treaties if citizens cannot rely on them before their national judge; and
such reliance would be pointless if treaties would not also over- ride conflicting national
legislation. The case for dualism is not without merit, either. Under the private law
concept of privity of contract, contracts are binding upon the parties thereto, not upon
third parties; a treaty may be likened to a con- tract between the state and a foreign state
making mutual promises, not between the state and its own citizens. To a dualist state,
treaty enforcement should be a matter for international diplomacy and public
international law, not domestic judicial action. Another argument against unconditional
monism might be that it would allow treaties to undermine the national constitution via
‘imported’ law taking precedence over national law: constitutional review of treaties
might be called for. France and the Netherlands are monist systems, although both
qualify the overriding effect of treaties somewhat. France makes the override subject to
reciprocity in the other contracting states, the Netherlands limits overrides to treaty
provisions that can confer individual rights. In both systems, treaty review may be seen as
‘compensating’ somewhat for the judges’ current or previous lack of constitutional
review powers. The US is a qualified monist system: federal treaties override State law
and earlier federal legislation, but their domestic effect can be undone by later federal
legislation. The UK and Germany, meanwhile, are dualist: treaties can be relied upon
only once they have been implemented into national law. A challenge arises for dualist
systems when it comes to giving domestic effect to human- rights treaties such as the
European Convention on Human Rights. It may reasonably be argued, and even the
lawmaker might agree, that human-rights commitments are only credible if they endure
and override conflicting national legislation. Think, for example, of unintended humanrights breaches. Yet national legislation implementing international human-rights treaties
in a dualist system is not necessarily superior in rank with respect to any other piece of
national legislation. Thus, the lex posterior rule, and implied repeal in the UK (meaning
that later law overrides earlier law) threaten to render earlier human- rights commitments
obsolete. Both Germany and the UK therefore have found techniques how to
circumnavigate the hierarchy dilemma, to take into account European human rights and
still hold on to a dualist model with respect to treaties. The UK has incorporated the
rights from the European Convention on Human Rights in a national statute, the Human
Rights Act 1998, and allows judges to make known if they detect a violation by another
statute (however they are still not allowed to disapply the statute for that reason). German
courts take Convention rights into account when interpreting the rights enshrined in the
Basic Law; the fact that the Basic Law anyway contains a human-rights catalogue that
goes far beyond the minimum guarantees in the Convention already makes the issue less
pressing.
European Union Law
For those states that are members of the European Union, the domestic effect of
international treaties is no longer merely a question of monism or dualism. The European
Community, the historical core branch of socio-economic integration since 1957, while
still treaty-based, has been defined as a sui generis legal order: as one of its kind. The
European Court of Justice (ECJ) has interpreted the law of the European Community as
being capable of having ‘direct effect’ and ‘supremacy’ in the member states. With direct
effect, individuals can invoke European law before national courts, without waiting for
transposition; with supremacy, European law overrides all conflicting national
provisions, no matter their rank. The novel thing, which distinguishes the Community
from any other international organization in the world, is that direct effect and supremacy
is taken to apply irrespective of whether the member state in question happens to be
monist or dualist. No matter what the approach to ‘normal’ treaties is, the ECJ ruled,
Community law possesses special qualities by virtue of its own special character. After
all, the European common market goes far beyond any ordinary trade agreement; the
treaty mentions not only the member states but also its people; it creates permanent
institutions; and it gives the ECJ jurisdiction in preliminary rulings precisely so as to
ensure uniform application of European law. Thus, in its breakthrough decision of Van
Gend & Loos v. Nederlandse Administratie der Belastingen (26/62, [1963] ECR 1), the
ECJ held: ‘The conclusion to be drawn from this is that the Community constitutes a new
legal order of international law for the benefit of which the States have limited their
sovereign rights, albeit within limited fields, and the subjects of which comprise not only
Member States but also their nationals’.
Thus, the Community was not considered to be based on a ‘normal’ treaty at all, but on
one in which the member states have decided to share their sovereignty for the effective
pursuit of rather ambitious common goals. In the follow-up case to Van Gend & Loos,
namely Flaminio Costa v. ENEL (6/64, [1964] ECR 585, 593), the ECJ furthermore
made clear that European law with direct effect had supremacy over conflicting national
law:
‘The transfer by the States from their domestic legal system to the Community legal
system of the rights and obligations arising under the [EEC] Treaty carries with it a
permanent limitation of their sovereign rights, against which a subsequent unilateral act
incompatible with the concept of the Community cannot prevail’.
Later case-law specified that Community law overrides all conflicting national law,
whenever and in whatever form adopted. The role of national judges is crucial to the
uniform application of Community law in he member states. Indeed, judges must set
aside all conflicting national provisions. In Administrazione delle Finanze dello Stato v.
Simmenthal SpA (106/77, [1978] ECR 629), the ECJ confirmed the Van Gend & Loos
and Costa doctrines, and added:
‘It follows from the foregoing that every national court must, in a case within its
jurisdiction, apply Community law in its entirety and protect rights which the latter
confers on individuals and must accordingly set aside any provision of national law
which may conflict with it, whether prior or subsequent to the Community rule’.
National judges must invalidate all national provisions incompatible with Com- munity
law. They may, in turn, not invalidate secondary Community law, such as regulations and
directives, on their own. As the ECJ held in Firma Foto-Frost v. Hauptzollamt LübeckOst (314/85, [1987] ECR 4199):
‘Since Article 177 [renumbered 230 EC] gives the [ECJ] exclusive jurisdiction to declare
void an act of a Community institution, the coherence of the system requires that where
the validity of a Community act is challenged before a national court the power to declare
the act invalid must also be reserved to the Court of Justice’.
If in doubt about the validity, or simply the correct interpretation, of Community law,
both primary and secondary, national judges are free to halt proceedings and ask a
preliminary question to the ECJ before resolving the case before them. Courts of last
instance in principle even have to refer preliminary questions to the ECJ.
Many national courts, in particular constitutional courts, disagree with such a farreaching and unconditional interpretation of the effect of European law as maintained by
the ECJ. In their view, while European law indeed should enjoy direct effect and
supremacy, these features must be accommodated into national constitutional law, and
thus cannot be unconditional. France, for example, accepts direct effect and supremacy of
European law, but only by virtue of France’s monism. Thus, treaty law does override
ordinary legislation, but the French Constitution is above both. The constitutional courts
of Italy and other member states also stress that there are certain core features of the
domestic constitution which cannot be overridden by European law. Germany is famous
for its case-law whereby a constant threat is in the air that the Federal Constitutional
Court might strike down a piece of secondary European legislation as being incompatible
with the Basic Law.
In the Netherlands, direct effect and supremacy of European law poses no real conflict.
Since the Netherlands is monist, and judges have no power of constitutional review
anyway, the Dutch courts have no problem in pragmatically accepting the ECJ’s
reasoning. In the UK, meanwhile, problems could not have been greater. Parliamentary
sovereignty would seem incompatible with a system where, like the ECJ demands, a
judge can set aside a national statute.
In reality, European law does possess the qualities that the ECJ has interpreted it to have.
The French qualifications on European law supremacy are largely academic; the German
Constitutional Court has indicated that constitutional review of European law would not
be exercised, and instead be reserved only for grave cases: a deterioration of human
rights standards, but also an unlawful expansion of EU powers without authorization
from the member states. Even the UK has found a way to reconcile parliamentary
sovereignty with European law supremacy. Parliament, by freely deciding to join the
Community, must have wanted to accept the relevant ECJ doctrines as part of the deal
itself. Indeed, the European Community context is the only case where a UK judge may
disapply an Act of Parliament.
The European Union truly is a new legal order. It is just not unconditionally ECJ-driven.
The complex interrelations between European and national law, and the ‘dialogue’
between European and national judges over fundamental doctrines, is part of the
European order’s uniqueness. And European law is not somewhere ‘abroad’: in one way
or another it is an integral part of the member states’ constitutions. No matter what the
doctrinal embedding, it also affects the domestic relations between judge and lawmaker.
After all, the judge has, or gains, ‘European’ review powers, while national legislation
cannot stand if it violates European law.
Summary
Of the five systems under consideration, three (the US, France and Germany) allow
courts or court-like institutions to review the constitutionality of legislation. In the US,
review powers in concrete judicial disputes apply to all courts; in Germany the courts,
and in France the two supreme courts, can refer questions regarding the constitutionality
of legislation to a central institution. Abstract review of laws is possible in France (before
promulgation) and in Germany (after promulgation), but impossible in the US. The
constitutionality of legislation may not be questioned by judges in the UK or the
Netherlands. The Netherlands does allow judges to check the compatibility between
legislation and international treaty provisions, however; the same holds true for France
and the US. The UK and Germany remain dualist with respect to treaty provisions.!