Omar Bennett
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether challenged laws are unconstitutional, i.e. whether they conflict with constitutionally established rules, rights, and freedoms. The jurisdiction and procedural rules of constitutional tribunals vary from country to country, with some constitutional courts limited to concrete cases, such as complaints filed by litigants or petitions from general jurisdiction courts. Constitutional courts have been established in response to major political and social change, as well as to entrench democratic reforms and safeguard fundamental rights. The Austrian model, developed by legal scholar Hans Kelsen, was the first of its kind in 1920, influencing many other countries to adopt a similar system.
| Characteristics | Values |
|---|---|
| First country to introduce a constitutional court | Austria in 1920 |
| Purpose of Austrian constitutional court | To protect against legislative overreach and limit the role of non-constitutional judges |
| Countries that adopted the Austrian model | Germany, Japan, South Africa, post-Soviet Bloc countries, other countries in Africa and Latin America |
| Countries with separate constitutional courts | Germany, Bulgaria, Hungary, Italy, Portugal, South Africa, Russia |
| Countries that delegate constitutional authority to ordinary courts | N/A |
| Other names for constitutional courts | Charter courts |
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What You'll Learn
The Austrian System
In 1919, the First Austrian Republic established the world's first dedicated constitutional court, the Constitutional Court of Austria. However, it existed in name only until 10 October 1920, when the country's new constitution came into effect, and the court gained the power to review the laws of Austria's federal states. The Austrian model, developed by legal scholar Hans Kelsen, was designed to protect against legislative overreach and limit the role of non-constitutional judges to the application of legislation.
The Austrian Constitutional Court is the tribunal responsible for judicial review. It verifies the constitutionality of statutes, the legality of ordinances and other secondary legislation, and the constitutionality of decisions of certain other courts. The Court also decides over demarcation conflicts between courts, between courts and the public administration, and between federal and state bodies. It hears election complaints, holds elected officials and political appointees accountable for their conduct in office, and adjudicates on liability claims against Austria and its bureaucracy.
The Court consists of fourteen members and six substitute members, appointed by the president on nomination of the Cabinet, the National Council, and the Federal Council. Members of Parliament cannot simultaneously be members of the Constitutional Court. All members have to be highly experienced lawyers, and judges of the Constitutional Court can look back on careers as attorneys, notaries public or judges, company or administrative lawyers, or university teachers.
The Austrian Constitutional Court ensures that all Austrian legislation, primary or secondary, conforms to any Austrian legislation outranking it. Statutes and international treaties that have been elevated to statute rank by the legislature have to conform to the constitution. Executive ordinances and ordinary treaties also have to conform to ordinary law. Supplementary ordinances additionally have to conform to the original ordinances they derive from. The Court cannot void treaties because Austria cannot unilaterally rescind an agreement it has entered into under international law. However, it can order Austrian officials to stop applying the treaty, and if this puts Austria in breach of treaty obligations, it is up to the administration to negotiate an amendment to the treaty or a withdrawal from it.
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Constitutional courts in Germany
Germany's Federal Constitutional Court (Bundesverfassungsgericht) is the country's supreme constitutional court. It was established by the constitution or Basic Law (Grundgesetz) of Germany following World War II. The court is headquartered in Karlsruhe, Baden-Württemberg, and has been located there since its inception.
The main task of Germany's Federal Constitutional Court is judicial review, which involves assessing the constitutionality of governmental action and legislation. It is the only court in Germany with the power to declare statutes unconstitutional under the Basic Law. The court's jurisdiction covers constitutional issues and ensuring compliance with the constitution by all governmental institutions, including the legislature, executive, and judiciary.
The Federal Constitutional Court has a heavy workload, handling approximately 5,000 cases annually. It consists of two separate panels (senates) of eight judges each, with each panel having jurisdiction over distinct areas of constitutional law. Judges are elected for a single, non-renewable 12-year term and must secure a two-thirds majority of votes to be elected.
In addition to its primary role in judicial review, the Federal Constitutional Court possesses additional powers. For example, it can hear complaints against federal judges for infringing on the principles of the Basic Law and may order their transfer, retirement, or removal from office. The court also has the authority to ban political parties that threaten the existence of Germany or seek to undermine the free democratic basic order.
Germany also has constitutional courts at the state level, such as the Constitutional Court of Baden-Württemberg and the Bavarian Constitutional Court, which have their own powers and responsibilities within their respective states.
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Constitutional courts in Russia
Russia has a trifurcated court system, with constitutional, ordinary (including military and non-military), and other courts. The Constitutional Court of Russia is considered a separate, independent court. The district courts are the primary criminal trial courts, and the regional courts are the primary appellate courts.
The Constitutional Court of the Russian Federation is a high court within the judiciary of Russia that rules on whether certain laws or presidential decrees are contrary to the Constitution of Russia. Its objective is to protect the Constitution (known as "constitutional control" or "constitutional supervision" in Russian constitutional law) and deal with a few kinds of disputes where it has original jurisdiction. The highest court of appeal above it is the Supreme Court of Russia. The Constitutional Court of Russia is responsible for cases concerning conformity with the Constitution, judicial disputes between two or more federal bodies, between a federal body and a member of the Federation, and between members of the Federation. As such, it practices "constitutional review" (differentiated from judicial review) and decides whether federal laws, presidential decrees and directives, and regional constitutions, charters, and laws comply with the federal constitution, as well as treaties between the national government and a regional government, and between regional governments.
The Constitutional Court of Russia consists of 11 judges (with a quorum of 8), one being the President (currently Valery Zorkin) and another being Deputy President. The President presides over the court's sessions, represents the court in its relations with state bodies, has considerable powers in the matters of appointment, and makes the initial recommendation for disciplinary measures, in particular dismissal. The judges are nominated by the President and appointed by the Federation Council for an indefinite term, with an age limit of 70 for regular judges and 76 for the Deputy President of the Court (the President of the Court has no age limit). In order to become a judge of the Constitutional Court, a person must be a citizen of Russia, at least 40 years of age, have a legal education, have served as a lawyer for at least 15 years, and have a "recognized high qualification" in law.
The modern legal system of the Russian Federation is a code-based, civil law system. In descending order of authority, its main sources of law are the constitution, federal constitutional laws (laws decreed by the parliament as constitutional law), federal laws, presidential decrees, government resolutions and orders, legal acts of authorized state bodies, and regional laws and regulations. The court system in Russia has two administrative levels: federal and regional. There are eighty-five ‘subjects’ on the federal level (cities, regions, and other territorial entities), each with their own charter (constitution) and legislation.
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Constitutional courts in South Africa
The Constitutional Court of South Africa is the country's highest court, with the power to rule on constitutional matters. Born out of South Africa's first democratic Constitution in 1994, the court is tasked with protecting the human rights of all citizens and ensuring that the country's laws are in line with the Constitution. The court consists of eleven judges, appointed by the President, who serve for a term of twelve years. The court is led by the Chief Justice of South Africa and their deputy.
The court's primary function is to interpret the Constitution and determine its meaning in relation to matters in dispute. It does not decide on the guilt of accused persons or damages awarded to injured persons, leaving these matters to the ordinary courts. Instead, it hears appeals from the High Court or Court of Appeal, and in exceptional circumstances, may accept direct applications to sit as a first instance court. The court also reviews lower court decisions declaring legislation invalid and, at the request of parliament, assesses the constitutionality of bills.
The Constitutional Court of South Africa is located at Constitution Hill, 11 Kotze Street in Braamfontein, Johannesburg. The building incorporates stairwells from the former prison that once stood on the site, serving as a reminder of the country's past. The court is open to the public, who can attend hearings and view an extensive art collection, including works by prominent South African artists.
The establishment of the court was a significant step in South Africa's transition to democracy following the apartheid era. Nelson Mandela noted its importance in his 1995 speech: "The last time I appeared in court was to hear whether or not I was going to be sentenced to death... Today I rise not as an accused, but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy."
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The US Supreme Court
The Supreme Court consists of nine Justices, including one Chief Justice and eight Associate Justices. Justices are appointed by the President and confirmed by the Senate, and they typically hold office for life. The Court meets annually from the first Monday of October until the end of June.
The Supreme Court's appellate jurisdiction consists of appeals from federal courts of appeal, the Supreme Court of Puerto Rico, the Supreme Court of the Virgin Islands, and the District of Columbia Court of Appeals, among others. The Court has the authority to review the decisions of lower courts and decide whether to hear a case. It usually hears cases that have been decided in a U.S. Court of Appeals or the highest court in a given state, focusing on cases of national importance.
The Supreme Court's original jurisdiction allows it to hear a case directly without it going through lower courts first. This applies to specific cases, such as those involving disputes between different states or disputes arising among ambassadors and other high-ranking ministers.
The Supreme Court's decisions have a profound and lasting impact on American society and governance, influencing a wide range of issues from civil rights to economic regulations.
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Frequently asked questions
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional. More than 80 countries have a constitutional court.
Constitutional courts are found primarily in civil law countries. In common law jurisdictions, the power of constitutional review is usually assigned to the courts of general jurisdiction. Constitutional courts are usually independent institutions, outside of the ordinary court system.
The jurisdiction of constitutional courts includes constitutional review of legislation, regulations, and government acts. This can include reviewing the constitutionality of existing laws, ensuring proposed treaties comply with the constitution, and resolving disputes involving elections and political parties.
Examples of constitutional courts in different countries include the Constitutional Court of Austria, the Constitutional Court of South Africa, the Constitutional Court of Bulgaria, and the Constitutional Court of Berlin in Germany.
