1. General pictureCENTRAL AND SOUTH AMERICA
Constitutional review (with different effects) also developed in the countries of Central and South America. This justice is based on a rather rich tradition of constitutionalism in some countries.
There are four main systems of constitutional review:
a) THE AMERICAN OR DIFFUSE MODEL, the most widespread model, in which all courts, from the lowest to the highest, review the constitutionality of statutes and administrative measures in specific proceedings using common procedural rules. In the diffuse system decisions generally take effect inter parties only. As a rule, court decisions concerning the unconstitutionality of statutes is retroactive, i.e. ex tunc (with pro praeterito consequences).
The American system of judicial review has influenced numerous countries in Central and South America, where it was adopted even back in the 19th century by mainly countries with a federal state system73. In some countries this system has subsequently been amended and corrected through the parallel introduction of the European model., such cases are referred to here as the "mixed systems" of modern Brazil, Colombia, Ecuador, Guatemala, Peru and Venezuela.
The characteristics of the Central and South American variant of this system are as follows: all judges and courts have constitutional/judicial review jurisdiction; in pure systems standing is reserved for (ordinary) courts only; decisions have inter parties effect; the contents of the decision are in fact the finding - a statute may be declared null and void (the principle of the nullity of an unconstitutional State regulation), with ex tunc and/or pro-praeterito effect.
The systems with the American model of judicial review in Central and South America are further characterized by amparo proceedings. In Argentina amparo was established in 1853 by the Federal Constitution, but in practice the Supreme Court began to exercise its powers as late as in 1860. Mexico was the first to introduce it on 5 February, 1857, and readopted it in the Constitution of 5 February, 1917. Amparo proceedings were also introduced by other countries following the Mexican model74.
b) THE EUROPEAN OR AUSTRIAN (OR CONCENTRATED) MODEL, adopted by Constitutional Courts specialized for the review of the constitutionality of statutes in special proceedings, is less widespread. In such a system the decisions of the constitutional review body have an erga omnes effect and they may declare unconstitutional statutes to be abrogated. Their decisions have an ex nunc effect with pro future consequences, i.e. the abrogation takes effect only at the moment when the decision on abrogation is issued by the Court. There is a characteristic feature that in some countries the concentrated system exists in parallel to the diffuse system (i.e. in Brazil, Colombia, Ecuador, Guatemala, Peru and Venezuela). The exclusive power of constitutional review is reserved either for the Supreme Court (Panama, Paraguay, Uruguay), for a special chamber of the Supreme Court (Costa Rica) or for the Constitutional Court (the Argentinean Province of Tucuman, Chile, Surinam75). Considering the fact that the introduction of constitutional/judicial review is usually related to the democratisation process in a specific country, it is worth mentioning the example of Argentina, where this transformation process of the social and legal system started on the level of province (as evidenced by the introduction of the constitutional protection of human rights in individual provincial Constitutions or even by the above example of the establishment of a Constitutional Court in the Province of Tucuman).
c) Some countries have a MIXED, l.E. DIFFUSE AND CONCENTRATED SYSTEM OF CONSTITUTIONAL/JUDICIAL REVIEW, e.g. Brazil, Colombia, Ecuador, Guatemala, Peru and Venezuela. Most often these countries have modified the original diffuse system by adapting it to the respective circumstances (e.g. in Argentina, and in particular, Mexico, with its specific juicio de amparo as a form of constitutional complaint). Accordingly, the concentrated and diffuse systems of constitutional/judicial review may coexist in the same country.
Mixed systems are characterized by the popular complaint (actio popularis) as introduced by certain countries76.
d) OTHER SYSTEMS OF CONSTITUTIONAL REVIEW
A special system of
constitutional review is known in Cuba, where according to the Constitution
of
24 February, 1976, the power of constitutional review is held by the National
Assembly (legislative body).
2. The Particular Systems of Constitutional Review
Generally, the system of incidenter review (indirect constitutional review) was adopted. However, some provinces have a double system of constitutional review (direct and indirect). The new regulation in some provinces after 1957 is of main importance (Chaco, Chubut, Formosa, Neuquen, Rio Negro).
The constitutional review system is based on Articles 31 and 100 of the Constitution of 1 May, 1853 (with Amendments from 1860, 1866, 1898, 1957 and 1994). With reference to the prevailing system, each judge is empowered, irrespective of their position, to evaluate the conformity of laws and administrative acts with the Constitution. Constitutional review is exclusively reserved for the judiciary. The decisions take effect ex tunc and, naturally, inter partes.
Habeas corpus proceedings are possible; a complaint of this kind is meant to protect the right to Personal Liberty (Article 18 of the Constitution). Exclusive power to decide on such complaints is reserved for criminal judges, however this is limited merely to deciding on acts and facts where a violation of fundamental constitutional rights is involved. The amparo is regulated by the Ley nacional sobre Ley de Amparo of 18 October, 1966.
Another type of proceeding includes specific protection complaints - recurso de amparo. This was introduced pursuant to the decisions of the Argentinean Supreme Court of 1957 (the Angel Siri Case) and of 1958, on the example of the amparo complaint in Mexico and in certain other Central American countries, as well as in Brazil, where such a complaint is referred to as the mandado de seguranca. With the recurso de amparo, the protection of rights was extended from habeas corpus (relating to the right to Personal Liberty) also to all other rights guaranteed by the national Constitution. Whether to decide on such complaints is the decision of each judge.
On the federal level the Supreme Court is empowered to settle jurisdictional disputes between judges of different provinces, or judges of federal and provincial levels according to specific proceedings.
The constitutional review in Argentinean Provinces consists of the following:
The Constitution of the Province of Tucuman of 28 April, 1990 established its Constitutional Court on the European model (Tribunal Constitutional). Its power is limited to provincial legislation. The Constitutional Court is declared to be the supreme protector of the Constitution, in particular in cases of its violation (e.g., impeachment, Article 5, Para. 1 of Article 133 of the Constitution). The Constitution envisages the amparo as a means of protecting constitutional rights before the Constitutional Court (Article 22 of the Constitution). The five member Constitutional Court is empowered to carry out repressive abstract constitutional reviews of laws and executive regulations (Para. 1 of Article 134 of the Constitution), preventative abstract constitutional reviews of draft laws and draft executive regulations (Para. 2 of Article 134 of the Constitution), reviews of elections of members of the Provincial legislative body (Para. 3 of Article 134 of the Constitution), to adjudicate charges against State officers in cases concerning violations of the Constitution (Article 5 and Para. 4 of Article 134 of the Constitution), and to settle jurisdictional disputes between legislative and executive bodies of the Province, between Provincial courts, municipal bodies, between the Province and municipalities, as well as between municipalities themselves (Para. 5 of Article 134 of the Constitution).
Under the Constitution of 21 September, 1981, amended by Act No. 26 of 1988, where any question as to the interpretation of the Constitution arises in any court and the court is of the opinion that the question involves a substantial question of law, the court has to refer the question to the Supreme Court (Article 96).
Under the Constitution of 2 February, 1967, the Supreme Court of Justice, among other duties, was empowered to decide, as the final authority, upon questions of pure law wherein the decision rests upon the constitutionality or unconstitutionality of a law, decree or resolution of any kind (Article 127). It was also empowered: to decide on charges against the President and Vice-President of the Republic and Ministers for offences committed in the discharge of their office whenever Congress decrees impeachment; to settle jurisdictional disputes between municipalities or between these and political authorities, and between either of these and the municipalities of the provinces; to decide complaints against the resolutions of the legislative branch or one of its chambers, whenever such resolutions may effect one or more concrete rights, either civil or political; to decide disputes between local governments, whether they concern their boundaries or any other rights in such a controversy.
By the Law of Reform of the Political Constitution of the State of 12 August, 1994, the Constitutional Court was newly reinstituted. The new Constitutional Tribunal is composed of five members elected to ten-year terms. Its powers are detailed in Article 120, all of which deal with issues of constitutionality, unconstitutionality, and conflicts of competence. Article 121 specifies that there is no further recourse beyond a decision of the Tribunal, and that statute regulates its organisation and functioning as well as the proceedings before the Tribunal.
In general, the Brazilian system of constitutional review is a mixed system. Similar to the Argentinean, also the Brazilian system follows the American model. However, by the constitutional reform of 1934 the direct request for the determination of unconstitutionality before the Supreme Court of Justice was introduced. Therefore the Brazilian system can be treated as a mixed system.
The diffuse system already existed under the Constitution of 1891 and the Federal Act No. 221 of 1894. All federal judges are empowered to carry out the constitutional review of statutes and federal executive regulations. At the same time, in the Brasilian system habeas corpus proceedings have a long tradition as introduced by Para. 22 of Article 73 of the Constitution of 1891.
The powers of the Brazilian Supreme Federal Court are as follows (Articles 102, 103, 34 and 36 of the Constitution):
Decisions and temporary orders are published in the Official Gazette, and simultaneously also in the Official Digest. Generally, the parties are obliged to pay court fees. Habeas corpus proceedings and the abstract review are free of charge.
The concentrated system, from 1934 onwards, gives the Supreme Federal Tribunal the power to determine the unconstitutionality of the constitutions of member states and state laws, however, only on the request of the Attorney General of the Republic, which entails an element of the abstract review of norms. By the Constitutional Amendment of 12 December, 1965, such a possibility was extended to include the constitutional review of all state regulations, federal as well as those issued by member states. In such a manner, the abstract review of norms was introduced based primarily on the request of the Attorney General of the Republic as a legitimate petitioner. By Article 103 of the Constitution of 1988 the circle of abstract review petitioners was extended. Petitioners may be different federal and provincial bodies, political parties represented in the parliament, and social organisations.
Under the diffuse Brasilian system, all courts of first instance are entitled to not implement any statute which they consider to be unconstitutional, however not ex officio, but always on the request of a party in the proceedings. Such decisions have inter partes and ex tunc effect.
The Brazilian Constitution of 1891 also introduced the competence of the Supreme Federal Tribunal to review decisions issued by lower courts in cases of constitutional matters, when requested by a party which has lost such a case. Such a decision has inter partes and ex tunc effect; the statute is still in force but not applicable in a concrete case. However, the Federal Chamber may declare such a decision issued by the Supreme Federal Tribunal to have erga omnes and ex nunc effect (from 1934 onwards as well as under the Constitution in force).
The concentrated system has been in the jurisdiction of the Supreme Federal Tribunal since 1934, but only the General Public Prosecutor has standing to petition. In this case the court decisions have erga omnes effect and they are declaratory.
Indirect constitutional review is possible in complaints concerning the protection of constitutional rights and freedoms (mandado de seguranca) which exist in parallel beside habeas corpus proceedings. In addition, the Brazilian system also has a certain form of the popular complaint, i.e. "popular action for the protection of public assets" (Para. 3 of Article 102 of the Constitution in force) which is, in principle, possible against administrative acts, but indirectly also entails the constitutional review of statutes (an administrative act may be based on an unconstitutional statute).
The most recent constitutional revision was adopted in 1988 (which was already amended in 1992, 1993, 1994, 1995, 1996, 1997 and 1998). Under the Brazilian system any court or any judge may declare unconstitutional any statute which could be implemented in a concrete case. This unconstitutional statute is not declared null, however, it may not be implemented. The court decision has only inter partes effect. On the other hand, the Constitution of 1934 regulated in Para. 4 of Article 90, the possibility that the decision of the Brazilian Supreme Federal Court by which in incidenter proceedings a statute is declared unconstitutional, may be granted the force of statute by an act of the Federal Chamber (the Constitution of 1988 regulates this matters by Para. 10 of Article 52).
Thg Supreme, Federal Court of Brazil (Supremo Tribunal Federal) is composed of 11 members (Article 101 of the 1988 Constitution). They are appointed by the President of the Republic after confirmation by an absolute majority of the members of the Parliament. There are some conditions determined by the Constitution for appointment: Brazilian citizenship, membership in the bar, a minimum age limit of 35 years, and a maximum age limit of 65 years. Under Article 95 of the Constitution, Court members are guaranteed permanency of salary, office for life and irremovability. However, Article 93 of the Constitution determines the mandatory retirement of age to be 70. The President of the Supreme Federal Court is elected directly (by an absolute majority) from among Court members for two years; re-election is explicitly excluded. Each judge may choose two legal advisers.
The Supreme Federal Court can also act as a proponent of statutes regulating the judiciary (Article 93 of the Constitution). Under Articles 99 and 168 of the Constitution, the Supreme Federal Court also has administrative and financial autonomy (it may make independent proposals concerning its budget).
The Supreme Federal Court may work in a plenary session; such a session is obligatory in the following situations: determining the unconstitutionality of a statute; issuing a temporary order in abstract review proceedings; impeachment proceedings concerning the President of the Republic, ministers or representatives; or jurisdictional disputes. In addition, the Court also has two chambers composed of five members. Court proceedings were regulated by the Rules of Procedure of 16 March, 1967, amended on 27 October, 1980, in accordance with the explicit constitutional provision on the autonomy of the Supreme Federal Court concerning its internal organisation. The new Constitution does not contain an explicit authorisation granted to the Court to issue rules of procedure. Therefore, until matters are regulated by statute, the provisions of the old Rules of Procedure are implemented unless directly contrary to the Constitution. A plenum of the Court can decide in the presence of no less than 8 judges. A majority of six judges present and voting is necessary for a decision on the unconstitutionality to be issued. Any judge has always been able to issue a dissenting opinion (voto vencido). Such dissenting opinions must be included in the decision where also the ratio of votes is indicated in detail. Subsequently, the dissenting opinion is published as a part of the decision in the Official Digest of the Supreme Court (Revista Trimestral de Jurisprudencia).
The Constitution of 1925 empowered the Supreme Court to exercise constitutional reaew, but this constitutional review was of an incidenter character (Article 86). By the constitutional reform of 21 January, 1970, the Constitutional Court was established, above all with the aim that a special body adjudicate jurisdictional disputes between State bodies. The activities of this Court ceased in 1973. The Constitutional Court was reintroduced by the Constitution of11 September 1980 (Articles 81 and 83). Its work is regulated by the Basic Constitutional Act of 12 May, 1981. The Court has the following powers: the preventative review of statutes; impeachment; the review of the constitutionality of referenda; the repressive review of the constitutionality of statutes and decrees having the force of statute requested by direct application; other powers as determined by statute.
The first Constitution of the present Colombia of 30 March, 1811 (the Constitution of Cundinamarca) introduced the constitutional review of statutes by a special Chamber similar to the French Constitution of 1799. Further Colombian Constitutions of 1821, 1832 and 1843 did not include any constitutional review of norms. However, the Constitution of 1853 determined in Item 6 of Article 42 that the Supreme Court may declare municipal regulations and regulations of provincial assemblies null if they violate the Constitution and statutes of the Republic. The Constitution of 1858 as the Constitution of the Federal State of Colombia, empowered the Supreme Court to suspend the unconstitutional legislative norms of federal member states. The final decision on the validity or invalidity of such norms was in the jurisdiction of the Chamber.
The new centrist Constitution of 1886 introduced in Article 90 a real constitutional review, i.e. that the Supreme Court decided on the constitutionality of statutes on the basis of a veto by the President, but the decision of the Supreme Court had erga omnes effect. This Constitution is, in general, still in force. The amendments adopted by Articles 40 and 41 of the Constitutional Act of 1910, are, in a modified version (the amendment of 1945), still in force. In case of conflict between a statute and the Constitution, the provisions of the Constitution prevail. The Supreme Court is empowered to protect constitutionality. The Court is empowered to decide finally on the constitutionality of statutes and executive regulations following a (popular) complaint, which may be lodged by any citizen. On the other hand, it is important that the decisions of the Colombian Supreme Court have erga omnes effect, and at the same time the effect of res judicata. It is not possible to dispute a final Court decision. The Colombian Constitution also introduced impeachment but not in such an expressive form. Impeachment proceedings against the President of the Republic, a Minister, the Prosecutor General and the members of the Supreme Court may be initiated by the Parliament. The decision is issued by the Chamber.
Concerning the regulations of 1961, the constitutional review bodies were the Plenum of the Supreme Court and the Administrative Court. Their powers were as follows:
By the constitutional reform of 1979, the Constitutional Chamber of the Supreme Court received even more autonomy concerning constitutional review as influenced by the European system of constitutional review and tendencies in this field in Chile, Ecuador and Peru.
The new Constitution of 1991 regulates the protection and implementation of rights in the 4th Chapter of Part II of the Constitution. It is also important that the system introduced many remedies for constitutional rights protection:
- The right to individual complaint - accion popular de inconstitucionalidad - which as a wider right concerning the general protection of constitutional rights is not designed only for the protection of basic rights but for the protection of all constitutionality. Furthermore, Colombia (similar to Venezuela) introduced the popular complaint very early. It was adopted by the Constitution of 1910, but later was regulated in detail by Act No. 96 of 1936 and Decree No. 432 of 1969, which were amended by later constitutional amendment in 1979.
- In accordance with the English tradition as well as with the tradition of many Latin American countries, e.g. Argentina, Bolivia, Venezuela, Brazil and Peru, the new Colombian Constitution also preserved habeas corpus proceedings for the protection of the right to personal freedom (Article 30 of the Constitution). This is a limited form of the constitutional rights oriented only to personal freedom.
- The new Constitution introduced also a specific and direct remedy for the protection of constitutional rights, regulated in Article 86 of the Constitution - the so-called accion de tutela; this right was primarily introduced into the constitutional text, mainly under the influence of Spanish law. This right includes the right of any individual to dispute a statute or an administrative regulation because of a violation of their constitutional rights. The Constitution envisages a detailed statutorial regulation on the exercising of this right (Article 90 of the Constitution). At the same time, the new Constitution explicitly determines the circle of rights which are protected by the accion de tutela (Article 86: the rights determined in Articles 11 to 31 as well as the rights determined in Articles 33, 34, 37 and 40). It entails the summary regulation of the protection of explicitly determined rights which have to be exercised directly on the basis of the Constitution. It is not important which body carries out the protection and on which proceedings the protection is based; what is important is what the subject of protection is. In practice there are rights which can be claimed by an affected individual any time before an ordinary court when such an individual feels affected following any violation due to any action or omission by a body of public authority. This legal remedy can be defined as a certain subsidiary amparo proceeding (besides the popular complaint adjudicated by the Constitutional Court and habeas corpus proceedings), similar to proceedings concerning constitutional rights protection from the Spanish system as regulated by the Act of 26 December, 1978. This Act regulated the protection of rights in cases when such protection was not covered by constitutional complaint under the Spanish Constitutional Court Act. However, the Spanish Constitutional Court is empowered under the Spanish Constitutional Court Act to adjudicate cases relating to Act No. 62 of 1978. Such regulation differs from the Colombian accion de tutela, whereby ordinary courts are primarily empowered to adjudicate such cases and the Colombian Constitutional Court acts only in a supervisory capacity (Para. 9 of Article 241 of the Constitution).
It is important that the new Constitution defined the Constitutional Court as an independent institution exercising constitutional review which replaced the former Constitutional Chamber of the Supreme Court. This entails a great change in accordance with the principle of the supremacy of the Constitution under the influence of European countries which formed special bodies as protectors of the supremacy of the Constitution. However, Colombian legal theory supported the idea of creating an independent constitutional review a long time ago: in 1957, 1959, 1975 and in 1978.
Under the special Act of 1989 (which actually entailed the amendment of the Constitution of 8 November, 1949, whose most recent amendment was declared by Law 7347 of 1 July, 1993) the European model of constitutional review was adopted, however, with the modification that constitutional review is concentrated within a special chamber of the Supreme Court. This Constitutional Chamber of the Supreme Court is exclusively empowered to adjudicate the following cases concerning constitutional review: popular complaints requesting the constitutional review of a statute (with erga omnes effect); preventative reviews of draft statutes (as a consultative function), as well as the constitutional review of legislation in the form of a concrete review.
Under the Constitution of 15 January, 1978, amended in 1983, the Supreme Court is exclusively empowered to exercise the constitutional review of statutes on the basis of a diffuse system. In addition, by the same Constitution of 1978, the Constitutional Court (Tribunal de Garantias Constitucionales) was established. Under Article 140 of the Constitution, the Court is composed of three members appointed by the Parliament, the President of the Supreme Court, the General Public Prosecutor, the President of the Supreme Electoral Court, a representative of the President of the Republic, a representative of Trade Unions and a representative of the Chamber of Commerce. It exercises the constitutional review of legislation in a concentrated form. In addition, it is also empowered to decide on complaints of citizens concerning violations of the Constitution. The new Ecuadorian Tribunal de Garantias Constitucionales functions on the basis of the amended Constitution of 12 July, 1979. It has many similarities to the Austrian model of constitutional review; however, the system in Ecuador still preserved amparo and habeas corpus proceedings.
Subsequently, the Constitution was amended in 1993, 1995, 1996 and in 1997. The proceedings of habeas corpus, habeas data and amparo were reintroduced. In addition, the Constitutional Tribunal (Tribunal Constitucionao) was introduced. It is composed of nine members and their respective substitutes, who last four years in their functions and may be re-elected (Article 174). The Court members must satisfy the same requirements as the ministers of the Supreme Court of Justice. The National Congress designates the Court members in the following manner:
Under the Constitution of 15 December, 1983, the Supreme Court of Justice has a Constitutional Division, which is empowered to take cognizance of and resolve petitions on the unconstitutionality of statutes,
decrees and regulations, cases of amparo, habeas corpus, and controversies between the Legislature and the Executive branch.
The Constitutional Division is composed of five magistrates appointed by the Legislative Assembly. Its President is elected by the latter on each occasion similar to the parliamentary election of Magistrates to the Supreme Court of Justice.
The system of Guatemala can be characterised as a mixed system of constitutional review. The diffuse system was introduced by the Constitution of 1921 and was preserved until the Constitution of 1965, which is still in force. All courts are empowered to exercise judicial review ex officio. Proceedings are incidenter, decisions have a declaratory character with inter partes and ex tunc effect.
Influenced by the European model of constitutional review, the Constitution of 1965 introduced a concentrated system of constitutional review (Articles 216 to 265 of the Constitution, i.e. a tribunal dedicated to deciding constitutional matters - Corte de Constitucionalidad). The Constitutional Court has explicit power to determine the unconstit(itionality of statutes with erga omnes effect. However, this Constitutional Court is not a permanent body, it operates only if constitutional review is necessary. The Court is composed of 12 members. Four members are appointed by the Supreme Court of Justice; the others are appointed also by the Supreme Court but from among members of the Court of Appeals and the Administrative Justice Tribunal. The President of the Constitutional Court is at same time the President of the Supreme Court of Justice. Constitutional review is based on direct requests. However, such requests are not a popular complaint similar to the Venezuelan or Colombian popular complaint, because in Guatemala the circle of petitioners is limited: the National Council, the Public Prosecutor, as well as an individual who is directly affected by an unconstitutional statute or state regulation. In addition, the individuals must have legal counsel. The decisions have erga omnes and ex nunc effect (in exceptional cases, the Constitutional Court may determine ex tunc effect). The Court decisions are published in the Official Gazette (Diario Officiao). The system of Guatemala also includes amparo proceedings (following the Mexican model) and habeas corpus proceedings. Proceedings before the Constitutional Court are regulated by the Ley de amparo, habeas corpus y de constitucionalidad of 3 May, 1966.
In general, the Constitution of 31 May, 1985, amended on 17 November, 1993, adopted the same system. In concrete cases, in every proceedings of whatever competence or jurisdiction, in any instance, and in cessation and even before sentence is decreed, the parties are able to lodge as an action, exception, or incident the total or partial unconstitutionality of a statute. The (ordinary) court has to make a determination in that respect (Article 266).
Actions against the statutes, regulations or provisions of a general character which contain a partial or total absence of constitutionality are heard directly by the Tribunal or Court of Constitutionality (Corte de Constitucionalidad) (Article 267). Under the current system, the Court of Constitutionality is a permanent tribunal of exclusive jurisdiction, whose essential function is the defense of the constitutional order. It acts as a collegiate tribunal with independence from the other State bodies and exercises specific functions assigned to it by the Constitution and the statute in the matter (Article 268). The economic independence of the Court is guaranteed through a percentage of the revenues that correspond to the Judicial branch.
The Court is composed of five members, each of whom has a respective alternate (Article 269). When it is adjudicating matters of unconstitutionality against the Supreme Court of Justice, the Parliament, or the President or Vice-President of the Republic, the number of its members rises to seven, the other two members being selected by lot from among the alternates. The members serve a five-year term of office. They are appointed in the following manner:
The Presidency of the Court is filled by the same appointed members on a rotating basis for a term of office of one year, beginning with the eldest member, and following in descending order of age (Article 271).
The Court has the following powers:
Under the Constitution of the Republic of Honduras of 11 January, 1982, amended on 30 January, 1991, statutes may be declared unconstitutional by reason of form or contents (Article 184).
The Supreme Court of Justice has original and exclusive competence over hearing and deciding such matters, and must render its decisions with the requirements of definitive sentences.
Any individual who considers their direct, personal, and legitimate interests affected may request the review of the constitutionality of a statute and its applicability (Article 185):
The institution of the, constitutional review is firmly grounded in the legal tradition of the country as amparo. This institution dates from the draft Constitution of the State of Yucatan of 1840. Amparo was further adopted by the Constitution of 1857 and without many changes by the Constitution (in force) of 1917. After the enactment of the Constitution of 1917, amparo was regulated in detail by the special Act of 1919, which was in force until 1936. Since 1936 the present Amparo Proceedings Act has been in force.
Amparo Uuicio de amparo in Mexico is designed for the review of conformity with the Constitution, and was introduced not only for the protection of the supremacy of the Constitution, but also for exercising and protecting rights guaranteed by the Constitution. The Constitution regulated these matters in Article 103. The object of amparo proceedings are always high regulations (statutes) which violate the
rights guaranteed by the Constitution. The review of conformity with the Constitution in amparo proceedings is in the jurisdiction of the federal judiciary bodies, and takes the form of an amparo complaint. Under Article 105 of the Constitution in force, the Supreme Court is also empowered to adjudicate jurisdictional disputes between the Federation and federal member states as well as between federal members states and federal member state bodies. The petitioner of such proceedings may be the affected State body.
The Constitution of 1847 was adopted under American influence, which resulted in the regulation that federal courts are obliged to protect constitutional rights and freedoms. The same regulation was adopted by the Constitution of 1857, which introduced a unique judicial institution, the judicio de amparo. At present, the regulation is based on the constitutional text of 1982 (amended from 1989 to 1997), which follows the directives of the 1917 Constitution. Amparo is based directly on the Constitution (Article 103), which completely reserved such proceedings for the federal courts. The effect of an amparo decision is inter partes; it is only of precedence importance for courts.
Under the Constitution of 19 November, 1986, amended on 4 July, 1995, the Supreme Court exercises constitutional review. The Court is composed of twelve magistrates elected by the National Assembly (Article 163). The Court is composed of several chambers, among them also the Constitutional Chamber. The organisation and membership of chambers is determined by the judges themselves. The full Court takes cognizance of and resolves instances of the unconstitutionality of any law, and conflicts of competence and constitutionality between the powers of the State. The President of the Court is elected from among the judges to a one-year term of office with the possibility of re-election.
Among other matters, the Court is empowered to carry out the following functions:
Under the Constitution of 11 October, 1972, amended in 1972, 1987, 1983, 1993 and 1994, the Supreme Court of Justice guards the integrity of the Constitution (Article 203). The Court in a plenary session tries and rules on cases concerning the unconstitutionality of statutes, decrees, decisions, resolutions and other acts that for reasons of substance or form are challenged before it, by any person.
When during the proceedings of a case, the public official entrusted with the administration of justice considers, or it is observed by one of the parties, that the legal or regulatory provision applicable to the case is unconstitutional, he submits the question to the cognizance of the Court in a plenary session, except when the provision has already been the subject of a decision, and orders a continuance of the case, until the question of constitutionality is decided.
Only the parties are able to formulate such observations at the appropriate moment during the proceedings.
Persons affected by the act, resolution, order or decision in question may request protection by administrative courts; and any individual or legal entity domiciled in the country may file a popular complaint.
The decisions issued by the Supreme Court are final, definitive and binding, and must be published in the Official Gazette. Neither writ of unconstitutionality, nor constitutional guarantees (amparo) can be admitted against Court judgements.
PARAGUAY
Under the Constitution of 20 June, 1992, the Supreme Court of Justice has the power to declare any legal provision or Court decision unconstitutional (Article 132). In addition, habeas corpus, amparo and the habeas data proceedings were introduced (Articles 133 to 135).
The Constitutional Chamber of the Supreme Court is empowered to hear and resolve cases involving the unconstitutionality of statutes and other related instruments, declaring inapplicability for each specific case of a legal provision that is contrary to the Constitution through rulings that only affect the case in question (Para. 1 of Article 260). Furthermore, the Court is empowered to decide on the unconstitutionality of final or interlocutory decisions, nullifying those that contradict the Constitution. Petitions of unconstitutionality may be filed directly before the Constitutional Chamber or by way of defense before any other court and at any moment during a case. In such cases, the respective action is submitted to the Supreme Court.
Peru has introduced a mixed system. The Constitution of 12 July, 1979 followed the tradition of the diffuse system (Article 236). All judges were empowered to exercise judicial review in incidenter proceedings with decisions having inter partes effect. In addition, by the Constitution of 1979, also a concentrated system of constitutional review was introduced. The Tribunal de Garantias Constitucionales was established (Articles 296 to 305) composed of nine members; three are appointed by the Congress, three by the executive branch and three by the Supreme Court (La Cotte Suprema de la Republica). Court activities were regulated by the Court of the Constitutional Guarantees Basic Act No. 23385 of 19 April, 1982, amended on 22 August, 1985 (Reforma de la Casacion Constitucional ante el TGC). This Court was empowered to exercise the constitutional review of legislation and to review decisions decided by lower courts in habeas corpus and amparo proceedings. These two proceedings had a legal basis in the Constitution. In addition, habeas corpus proceedings were regulated by the La ley de habeas corpus y amparo no 233506.
Direct petition for constitutional review proceedings (accion de inconstitucionalidad) was limited to the following petitioners: the President of the Republic, the Supreme Court, the Public Prosecutor of the Republic, a group of 60 members of the Parliament, 20 senators, and 50,000 citizens, whose signatures had to be confirmed by the National Elections Board. The Constitutional Court was not bound by the petition, it was able to extend it ex officio. The decisions had erga omnes effect and only ex nunc (pro futuro) effect, however, in exceptional cases an ex tunc effect could be determined.
In the past, constitutional review in Peru was exercised based on the constitutional texts in force. At first, such review was exercised by the Central Chamber (1822), the Protective Chamber - senado conservador (1823), the Review Sub-Chamber - camara de censores (1826), the National Council (1828), and the Congress (1856, 1860, 1867, 1919). In 1931 the American system of diffuse review was adopted. In 1979 the Tribunal Garantia Constitucionales was introduced based on the European model. The adoption of the European model was influenced by similar institutions from other Latin American countries: Guatemala (1965), Chile (1970, 1980), and Colombia (1970). A special desire was present to adopt the Austrian model of constitutional review in parallel with the simultaneous existence of the American system of diffuse judicial review. So as a body of concentrated constitutional review, the Tribunal de Garantias Constitucionales was established. It was regulated by Articles 296 to 304 of the Peruvian Constitution (Constitucion politica del Peru) of 28 July, 1979. The Tribunal was an independent constitutional body. Its activities were regulated by the Constitution and the Court of the Constitutional Guarantees Basic Act. The Court was composed of nine members appointed for six years. Three members were appointed by the Congress, three by the executive branch and three by the Supreme Court. Re-election was possible. The candidates had to fulfil the following conditions: 10 years of membership in the Supreme Court or in some other highest court in the country; or 9 years of experience as a law professor; they must have a democratic view of life, and a demonstrated interest in the protection of human rights. The Court had power to decide the following matters: popular complaints containing a request for the constitutional review of statutes; habeas corpus and amparo proceedings; the constitutional review of all statutorial regulations; jurisdictional disputes between the highest State bodies and between bodies on the level of departments and regions; also the preventative constitutional review of draft statutes. Decisions on unconstitutionality had the force of statute and were published in the Official Gazette.
By the Constitution of 29 December, 1993, the following constitutional guarantees were introduced (Article 200): action of habeas corpus; action of amparo, action of habeas data; action of unconstitutionality; individual action; accion de cumplimiento.
The Constitutional Court is the body that reviews adherence to the Constitution (Article 201). It is autonomous and independent. It is composed of seven members elected for a five-year term.
For membership in the Court, the candidate must meet the same requirements as those mandated for a member of the Supreme Court. The Court members enjoy the same immunities and the same prerogatives as congressmen. They are subject to the same incompatibilities. No immediate re-election to membership is possible. The Court members are elected by the National Congress with affirmative votes of two-thirds of the legal number of its members. Judges of the Constitutional Court, and judges or prosecutors who have not relinquished their position for a year prior, cannot be voted into membership.
The Constitutional Court has the power (Article 202):
Decisions of the Constitutional Court which declare the unconstitutionality of a norm are published in the Official Gazette. On the day following publication, the said norm becomes null and void (Article 204). A decision of the Constitutional Court declaring a legal norm unconstitutional in whole or in part does not have retroactive effect. Once domestic remedies have been exhausted, whoever feels that their constitutional rights have been violated in his constitutional rights may resort to international tribunals or organisations established according to treaties or agreements to which Peru is a party (Article 205).
Under the Constitution of 17 November, 1966, amended on 8 December, 1996, statutes and the decrees of the local governments which have the force of law, may be declared unconstitutional by reason of form or contents, in accordance with the Constitution (Article 256). The Supreme Court of Justice has original and exclusive jurisdiction in the hearing and deciding of such matters, and must render its decision in accordance with the requirement for final decisions (Article 257). The declaration of the unconstitutionality of a statute and the inapplicability of the provisions affected thereby, may be requested by any person who considers that their direct, personal, and legitimate interests have been affected:
Decisions of the Supreme Court refer exclusively to a concrete case and have effect solely on the proceedings for which they are rendered (Article 259).
Constitutionalisation first began in 1811. However, the Constitution of 1961, following the constitutional tradition of the Constitution of 1858 (the supremacy of the Constitution) established the Supreme Court of Justice as a body empowered to exercise the constitutional review of statutes and other state regulations. At the same time, Article 20 of the Civil Code allows all courts in concrete cases to declare all normative acts as void when they are considered unconstitutional. In such a way the diffuse system was introduced. As a diffuse system it has an incidenter character and the judges have ex officio power. Decisions have a declaratory, ex tunc and pro praeterito effect (and/or retroactive effect). Despite its nonapplication in a concrete case, a particular regulation is still valid, because the Constitution reserved the determination of the nullity of a statute only for the Supreme Court of Justice. Due to the fact that the principle of stare decisis is not applied, a concrete decision is not binding on an individual judge or other judges and courts, which may change their opinion at any time.
To avoid eventual conflicts between judgements concerning constitutional matters, a concentrated system of constitutional review was introduced in parallel by the Constitution of 1858. This Constitution even introduced a popular complaint on the basis of which the then Supreme Court could declare provincial legislative acts null and void. This power of the Supreme Court was preserved also after the constitutional reform of 1864, despite the extraction of the popular complaint and that the member states of the then federative state received the status of petitioner in such cases. The mentioned power was preserved by the Constitution of 1893 until the Constitution of 1961 (amended on 16 March, 1983), which is still in force. On the basis of this Constitution, the activities of the Court are regulated in detail by the Supreme Court of Justice Basic Act of 1976. However, the jurisdiction of the Supreme Court was extended to all state regulations. By the same Act, the legal basis of the popular complaint was created. The Constitution does not require that a particular petitioner have an individual legal interest; the Supreme Court of Justice Basic Act has limited such a wide formulation with the condition that the disputed statute must violate the rights and interests of the petitioner. The popular complaint is not bound by a particular term and does not fall under the statute of limitations. Proceedings before the Supreme Court following such a complaint have an objective character. Complaints may be refused by decisions, which have erga omnes and res judicata effect. Decisions declaring statutes as null and void also have erga omnes effect and an absolute character res judicata. In such cases review is repressive. Furthermore, the Venezuelan system has featured a preventative review since 1854 exercised by the Supreme Court on the request of the President of the Republic before the promulgation of the relevant statute. The effect of decisions is different depending on the kind of proceedings. If the proceedings are of a diffuse character, the decisions have inter partes and pro praeterito and/or ex tunc effect. Decisions in the concentrated Venezuelan system have erga omnes effect. They are constitutive, pro futuro, as well as with ex nunc effect. The Supreme Coutl of Justice Basic Act of 1976 did not regulate such matters and determined that the Supreme Court alone has to determine the effect of its decisions.
In addition, the system of Venezuela also includes amparo proceedings (derecho de amparo), which was introduced by Article 49 of the Constitution of 1961 with the aim to protect basic rights and freedoms. However, even the former Constitutions of Venezuela included habeas corpus proceedings (limited only to the protection of personal freedom). Amparo proceedings are now regulated by the Ley Organica de Amparo sobre derechos y garantias constitucionales of 22 January, 1988.
THE
FORMER BRITISH COLONIES OF LATIN AMERICA (THE WEST INDIES)
These countries (Barbados, Guiana, Jamaica, and Trinidad and Tobago) did not adopt the English legal system, which does not include a special institution for constitutional review.
Therefore, in the mentioned countries constitutional review is exercised by the highest judicial body in the country: the High Court, the Court of Appeals, and the Privy Council. Constitutional review was introduced concerning the implementation of the principle of separation of powers, which prevents the usurpation of the judicial function by the legislature.
In contradistinction with the English system, most of the British Commonwealth countries, in particular in the West lndies region, adopted the diffuse system of judicial review. The system of constitutional review in these countries mainly follows the general trends of the diffuse system. However, concerning constitutional matters, in these countries the Supreme Court has the jurisdiction of final appeal. Some countries explicitly empowered courts to exercise constitutional or judicial review, sometimes this power was explicitly assigned to the Supreme Court, e.g. Trinidad and Tobago. There the High Court of Justice is empowered also to interpret the Constitution.
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