Specialised justice: constitutional courts worldwide

LAHORE/KARACHI: Over the last century, the concept of constitutional courts has gained global prominence, with over 90 countries across Asia, Africa, South America, North America, and Eastern Europe now having separate judicial bodies to oversee constitutional matters.

These courts have evolved significantly since their inception in Austria 105 years ago, and their decisions are binding on state organs, often with serious political implications. Despite teething problems, they now play a crucial role in ensuring harmony and co-existence among legal systems worldwide.

Countries such as Pakistan, India, Australia, Canada, the United States, and the United Kingdom are either considering setting up such courts or functioning effectively without them. The UK, New Zealand, and Israel, for instance, operate without fully codified constitutions, relying heavily on legal precedents.

The institution of constitutional courts is less common in Asia. For example, India lacks a constitutional court separate from its Supreme Court. This is in-line with the British-common law heritage of its legal system, something it shares with Pakistan. An Oxford University research paper highlights that constitutional courts’ emergence has been one of the most successful improvements in traditional democratic principles. The delineation between constitutional courts and ordinary courts allows for specialized adjudication of constitutional issues, ensuring that these courts focus solely on cases related to constitutional law, while ordinary courts handle legislative matters.

The paper maintains: “The general idea of delimitation appears relatively simple. The resolution of all cases and controversies of a constitutional dimension should be monopolized within the constitutional court, whereas the resolution of all cases and controversies involving the application of ordinary legislation should belong to the exclusive province of the ordinary courts (and, ultimately, to the respective supreme courts).”

According to Encyclopedia Britannica, the democratic transitions in the late 20th century spurred the proliferation of constitutional courts across the world. Countries like Spain, Portugal, Italy, Germany, and Greece have specialized constitutional tribunals, while others, such as Ireland, the United States, and Denmark, blend judicial review with cassation -- the review of lower-court decisions. In contrast, nations like France, Belgium, Luxembourg, and the UK exercise only the power of cassation. Countries like Italy and Egypt have multiple high courts, each with specific functions. For instance, Italy’s Constitutional Court has the exclusive power to exercise constitutional review, while its Supreme Court of Cassation interprets laws and reviews ordinary court decisions. In Egypt, the Court of Cassation ensures lower courts adhere to the law, but only the Supreme Constitutional Court can declare laws unconstitutional.

The functioning of these courts also varies. In Germany, France, and Portugal, constitutional courts can exercise abstract judicial review, while the US Supreme Court avoids advisory opinions. Many countries, such as the UK and Japan, have unitary judicial systems where all courts fit into a single national hierarchy, whereas the US operates with separate judicial systems for each state and the federal government. Delineation of powers between constitutional and supreme courts: The purpose of establishing separate constitutional courts is to concentrate constitutional review within a single judicial body, allowing specialized interpretation of constitutional law. These courts typically operate outside the traditional judicial structure, as noted by Lech Garlicki, a former judge of the European Court of Human Rights.

In countries like Germany, the Federal Constitutional Court handles constitutional matters, while the Federal Court of Justice deals with civil and criminal cases. This structure ensures that constitutional courts are not superior to supreme courts but run parallel to them, with distinct jurisdictions.

Finality of constitutional court rulings: In France, Germany, Spain and Italy, the decisions of the respective constitutional courts are final and cannot be appealed to their respective supreme courts. This is in contrast to India, where while the Supreme Court’s decisions are final, certain cases can be reviewed under specific conditions.

Selection of judges: In Germany, the Constitutional Court is composed of 16 judges, half elected by the Bundestag (lower house) and half elected by the Bundesrat (upper house) and the court is divided into two senates with eight justices in each senate. A two-thirds majority is required in both electoral bodies to ensure that the composition of the senates is well-balanced. The president of the court presides over the First Senate and the vice-president over the Second Senate. At least three members of each senate must be elected from the supreme federal courts of Germany (Federal Court of Justice, Federal Administrative Court, Federal Finance Court, Federal Labour Court and Federal Social Court) but anyone who is at least 40 years old and qualified to hold judicial office under the German Judiciary Act may be elected. A justice’s term of office ends after twelve years or when the retirement age of 68 is reached. To ensure their independence, justices may not be re-elected.

In Spain, members of the Constitutional Court are to be appointed from among Spanish citizens who are judges, prosecutors, university professors, public officials or lawyers, all them lawyers of recognized competence with more than fifteen years of professional practice or active in their respective functions. The appointment as judge of the Constitutional Court is for nine years, renewing the court by thirds every three years.

The Italian Constitutional Court is composed of fifteen judges selected from judges or retired judges from the highest levels of the judiciary – that is, the Supreme Court, the Council of State, and the Court of Auditors (Corte dei conti) – law professors, and lawyers with at least twenty years of experience in legal practice. There is no maximum or minimum age limit and each judge is appointed for a nine-year term of office (with no age limit) with a mandate that cannot be renewed or extended.

The French Constitutional Council comprises nine members who are appointed for nine-year terms. The members are appointed by the president of the republic and the presidents of each of the houses of parliament.