The control of constitutionality is a control operated by a judge to make sure that the standards of internal rights (law, payment), but also external (treaty) respect the constitution, which is placed at the top of the Hiérarchie of the standards.
First of all been a prelude to by Montesquieu in the Separation of the capacities (where the legal one has the capacity to make respect the laws within the meaning of privileges, including the Fundamental laws of the kingdom of France against the king), the idea of a control will be begun again and developed by the American federalists, since it will be perceived like another means of weight and counterweight ( checks and balances ). It will be effective later only a few years, at the time of the famous stop Marbury v. Madison of the Supreme court of the United States in 1803.
Since, many countries also invented the control of constitutionality. The traditional doctrines classified them between two models, but the evolution of controls, answering the double common objective of the respect of the rights and fundamental freedoms and the refusal of a politicized control, makes that today these models are of a very reduced utility.
Need for a control of constitutionality
Interference in the functions of the legislator
- the fact of controlling gives to the judge a role of " coauteur" law: it would be a kind of third room ;
- risk of Government of the judges.
The control of the law, expression of the general willProblem of legitimacy of a control of the judge who is only named, with respect to representatives of the people. There are two doctrinal answers:
Hans Kelsen answers by the theory judge-pointsman: the role of the judge is only procedural. However, in France, this theory is not applied, since the Constitutional council recognizes itself inefficient for the control of the laws chief clerks.
But, according to Tocqueville, the democracy is the conjunction of two elements:
- the government of the majority (law resulting from a democratic vote by the legislature), which is not the tyranny of the majority;
- the respect of the basic rights.
Control is then included/understood in this redefinition of the democracy: this one is not limited to the capacity of the majority, but one also needs the defense of the rights and freedoms:
- that avoids the tyranny of the majority by the Parliament;
- that founds a real superiority of the constitution;
- there is the respect of the Rule of law.
The Constitutional council, in his decision on New Caledonia in 1985, known as that the law expresses the general will only in the respect of the Constitution. There would be two people:
- current people, represented by the legislator;
- constituting people, represented by:
- Michel Troper: the Council;
- Carl Schmitt: the policy takes precedence over the right, consequently, the guard of the Constitution is the political authority which is the Head of the State.
The control of constitutionality and control of legalityIn France, the theory of the law-screen obliges the ordinary judges who exert the control of constitutionality, not to control compared to the Constitution if a law is in presence between the controlled standard and the Constitution. The control of constitutionality of the laws is reserved for the Council, it can be exerted by no other judge (concentrated control).
ModelsFour criteria are present: control committee, sasine, form of control, effect of control.
N.B. : today, in the European, control a posteriori and concrete model developed much.
Model of the Supreme court of the United StatesSupreme court of the United States: control worked out by jurisprudence Marbury v. Madison. Diffuse control, sasine of the opened judge, control by way of exception, controls concrete, control a posteriori, authority of the final decision relative effect (not of cancellation of the act and effect inter partes).
This model then extended in the countries from South America.
ex: Brazil: recourse of amparo , which makes it possible a citizen to call upon the attack carried against a right guaranteed by the constitution, but the effects are not erga omnes.
ex: Colombia: also this model imported, but especially, it is the first country has to have invented the control a priori of a law.
European modelHans Kelsen founds the High constitutional court of Austria in 1920. Louis Favoreu makes a model of it. Jurisdiction created to know especially and exclusively constitutional dispute and located apart from the jurisdictional apparatus ordinary and independent of this one like public authorities. Diffuse control, limited sasine (political authorities, jurisdictions even initiative), control by way of action, controls abstract, control a priori, absolute effect of the judged thing (cancelled unconstitutional act and effect erga omnes).
Evolution of the modes of control in the North-American modelIn three cases, the judges of the United States can make decisions erga omnes:
- declaratory judgments;
- facial challenges : direct disputes of the constitutionality of the laws (one does not attack an act making objection taken in its application, but the law itself);
- overbreadth : control legislative abuse of power.
Evolution of the modes of control in the European modelToday, there remains nothing any more but France which still answers the criteria. All the other countries evolved/moved. ex: Germany, Spain, Italy, Portugal: admit a control a posteriori by way of action or exception.
Critics of French control
Comparative insufficiencies of French controlFromont: the French model is the prototype of an objective and abstract control.
It is necessary to moderate, however, since the Council admits of the control a posteriori of one law at the time of the control of a law which modifies it.
In spite of that, the control of the laws is very restricted. All the laws which are comings into effect before 1974 were not controlled, even if they make objection.
The opening to the only political personalities involves a politicized control: according to the agreements between the parties, there will be or there will be no control; the interest of the private individuals is not of which sufficiently not defended. Today, only 10% of the promulgated laws are controlled by the Council.
Today, one compares more and more French control with other European controls which knew to evolve/move. French control remains one the most limited of.
Discusses on the existence of supra-constitutional standards
Jurisprudences Maastricht II September 2nd, 1992 and decentralized Organization of the Republic March 26th, 2003 would recognize the existence of these standards but in same time, the Council is stated inefficient to make them apply.
Which is the interest of such standards in this case?
Protective jurisprudence of the basic rightsIn spite of its insufficiencies, control is on certain points very advanced. It is in particular about the control of the basic rights, where the Council developed a jurisprudence known as of the effect pawl : the legislator cannot reconsider acquired rights by the private individuals as regards basic rights, it can only increase by it protection.
In addition, in a general way, the Council always refused to recognize any right to the difference (which thus does not exist in substantive law). The legislator is thus never obliged to treat two different situations differently. On the other hand, on the contrary, obligation is made to the legislator (the Council of State also applies this jurisprudence for the Administration) equally treat the people in the same situation (principle of equality of the citizens before the public services).
Reform proposalsThere were two reform projects carried by Robert Badinter and Georges Vedel. They wanted to accept control a posteriori and opened with the citizens.
In the Commission Report Balladur of 2007, it is proposed that the Constitutional council can be seized a posteriori by way of exception. Article 61-1 would be introduced into the Constitution which would lay out that very justiciable could, at the time of an authority, to raise the exception of unconstitutionality and to require of the Constitutional council to check the conformity of a law to freedoms and basic rights of the block of constitutionality.
Robert Badinter and Bruno Genevois also preaches a control by the Council with regard to the supraconstitutionnelles standards .
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