Forms of constitutional сontrol

Constitutional control called prior, when authorized by the authorities give their opinion on the compliance of the Constitution of certain acts before their entry into force. Typically, this control is carried out by the Constitutional Council, which addresses the president or a certain group of deputies by law (usually from the opposition) to (the constitutionality of the law adopted before the signing of its president.

At the subsequent constitutional debate on the constitutionality of an act is considered only after the act came into force (Germany, India, USA, Philippines, etc.). Laws and other legal acts, recognized or immediately canceled or prohibited to publish (and, therefore, do not take effect), or, finally, they remain in the law books, but can not be applied by the courts and other organs of the state.

In many countries there may be those and other consequences. As a rule, the decision of a specialized body of constitutional control is final and not subject to appeal.

In some countries, however, the decisions of the constitutional control is not: are final: in Namibia, Poland, Romania, Ecuador, Ethiopia Constitutional Court declares the law unconstitutional, such decision shall be subject to approval by Parliament (in Poland is expected repeal of this rule, introduced back in the "socialist "period). In Kazakhstan, against the decision of the Constitutional Council may object to the president, and then the case is considered again.

Distinguish between concrete and abstract constitutional scrutiny. In the first case, the decision shall be made in a particular case, in the second it is not associated with the case (for example, the court shall interpret the specific legal rule upon request of deputies). Sometimes the mandatory and optional control (subject to certain mandatory laws, such as the organic laws in France before they were signed by the President), the decisive and consultative control (in the latter case, the decision is not binding on the body).

Settlement of Disputes about the constitutionality of legislation. Procedure for challenging the constitutionality of the legislation in different countries are different. Where as an advocate of constitutional courts of law, to challenge the constitutionality of a law or other act of any citizen can, but only in connection with the consideration of a particular court (civil, criminal, etc.) of the case, which is used to solve the challenged law.

In the course of the proceedings, any party may declare that this law, in its opinion, is contrary to the constitution, and therefore the court should render their decision on this issue (Australia, India, USA, etc.). In Japan, citizens are allowed to apply to the court shall direct claim of unconstitutionality of the law. In Sri Lanka, it is also possible, but only in the case of a bill being discussed in Parliament before adoption.

In those countries where established special bodies of constitutional review, apply directly to such a body with the claim (application) may be strictly limited number of officials and government agencies. This is the president of the Republic (of Ireland), the government (Germany, Italy), some of the members of parliament (Germany, Spain), chairmen of the chambers of Parliament (Spain, France), some of the organs of the state in the field - the Länder in Germany, the regional councils in Italy, the Supreme Court and the Administrative Court in Austria.

The right to appeal a claim of unconstitutionality of legal acts to the bodies of the constitutional control is provided to nationals, but usually only in one case: if violated their constitutional rights.

Discussion on the constitutionality of an act in the bodies of constitutional review takes place in different ways. In general courts examines these questions and the judge decides, the U.S. Supreme Court appointed by the speaker - one of the members of the court. He had compiled the materials discussed by the entire court, then there is a vote. In the supreme courts of Colombia, Peru, Japan and some other countries, the decision may be made part of the court (in some countries this is a constitutional chamber).

In the process of constitutional courts review the constitutionality of the act takes place mainly by the rules of civil procedure (in fact, it is the special constitutional process) with the participation of the parties, their representatives, with the attendance of witnesses, with the experts' conclusions. The speaker can also be appointed, but he submitted material is introductory in nature.

The constitutional council process is on system files (mostly without the parties, based on the study of written materials). The main role played by returning officer - a member of the council, which instructs the Chairman of the Board to prepare a draft decision, conclusion. Hand, experts tend to a meeting of the Board are not invoked, although there are exceptions.

In all cases, / if the constitutional control is a collective body, the decisions are taken by majority vote. The operative part of the decision shall be announced immediately after its adoption, the reasoning can be published after a certain period of time can be

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Constitutional law

Пред След
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