CommentaryMyroslava Savchuk, Pitt Law LLM '10, discusses the differences between judicial review in the United States and her home country of Ukraine…
Judicial review refers to a court's power to review the constitutionality of a country's laws and invalidate them when necessary. Although the structure, methods, and effects of judicial review differ from country to country, there are two main types of judicial control over the constitutionality of actions of other branches of government. As an LLM student at the University of Pittsburgh School of Law, I've thought about their similarities and differences on a near-daily basis.
The American system accords the power of constitutional judicial review to all judicial bodies. The Austrian Constitution of 1920, drafted by the well-known legal scholar Hans Kelsen, established constitutional review on the European continent. This European or Austrian system of judicial review confines the power of judicial review to a single judicial body, typically a constitutional court, and was adopted in the constitution of my home country of Ukraine.
Nature of Judicial Review and Its Rationale
Although the US Constitution does not expressly provide for judicial review, Justice Marshall argued in Marbury v. Madison that it was implied in the provisions of Article III of the Constitution, which states: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" and "the judicial power is extended to all cases arising under the Constitution." Article VI further declares that the Constitution is the supreme law of the land and "the Judges of every state shall be bound thereby." [sic]
In continental Europe, the framers of constitutions, as well as legal and constitutional scholars, initially resisted the idea of judicial oversight precisely because it placed limits on the authority of representative assemblies. It was feared that an explicit adoption of constitutional review might lead to the establishment of a "government of judges" as opposed to an elected assembly.
Constitutional review started to gain support in Europe after its adoption in the Austrian Constitution in 1920 and was adopted in three distinct ways: in Germany and Italy after World War II, in Spain and Portugal after the collapse of their authoritarian governments, and in the countries of Eastern Europe after the collapse of the Soviet Union. The Austrian model of constitutional review in Europe was popular because it was believed to preserve traditional legal order while simultaneously allowing for effective review. It protects individual rights and provides a source for constitutional-law-building. Following continental Europe's example, my home country of Ukraine provided for a special Constitutional court when drafting its constitution.
Comparisons Between the Two Systems of Judicial Review
Marbury v. Madison implied the power of judicial review to the entire American judiciary, from the lowest trial court to the US Supreme Court. However, the Constitutional Court of Ukraine was given explicit powers of constitutional judicial review by the Ukrainian Constitution and the Law "On the Constitutional Court of Ukraine," which set forth the Court's organization, authority, and procedures of operation. The Court first met in 1996, months after the adoption of the Constitution.
The Constitutional Court acts outside of the hierarchy of Ukrainian Courts and is the sole body of constitutional jurisdiction in Ukraine. Pursuant to Article 149 of the Constitution, the Court was granted constitutional judicial review over the legal acts of the Verkhovna Rada (the Parliament) of Ukraine, the President, the Cabinet of Ministers, and the Verkhovna Rada of the Autonomous Republic of Crimea. The Court also has the power to provide the official interpretation of the Constitution and the laws of Ukraine. On issues arising under this Article, the Court renders final decisions that are mandatory for execution throughout the territory of Ukraine. According to Article 152 of the Constitution, laws and other legal acts, or their separate provisions that are deemed unconstitutional lose legal force from the day of the Court's decision.
The Constitution sets the number of judges at 18 and provides that the President, the Parliament, and the Congress of Judges of Ukraine each appoint six judges. This appointment process was established to ensure impartiality and judicial independence. Unlike in the United States, where judges are either elected or appointed for life, a judge on the Constitutional Court of Ukraine is only appointed for a term of nine years, must resign upon reaching the age of 65, and has no right to reappointment.
Article 151 of the Constitution establishes that the Court render decisions on the constitutionality of international treaties on the appeal of the President or the Cabinet of Ministers. The President or Cabinet of Ministers may request opinions on the constitutionality of international treaties to which Ukraine is currently a party, or international treaties submitted to the Verkhovna Rada of Ukraine for ratification. While the government may certify questions to the Court, most Constitutional questions are raised in the course of ordinary lawsuits, and any person may challenge the constitutionality of a law or other governmental action that adversely affects that person. Thus, in cases brought by individuals the Court has a power similar to the writ of certiorari granted by the US Supreme Court. Further, where constitutional questions come before the Constitutional Court in the course of ordinary lawsuits, comparisons may be drawn to the "case or controversy" requirement in the US. However, the US has the additional requirement that a plaintiff have standing before the court, whereas the Ukrainian Constitutional Court will hear cases brought even by non-citizens.
The Ukrainian Constitution establishes a limited list of officials who may directly appeal to the Constitutional Court seeking its opinion on the constitutionality of a law. The Court will consider the constitutionality of a legal act only on the "constitutional submission" of the President, no less than 45 National Deputies, the Supreme Court, the Authorized Human Rights Representative of the Verkhovna Rada of Ukraine or the Verkhovna Rada of the Autonomous Republic of Crimea. The other distinction between the two systems is that American courts are limited to decide only "cases and controversies" that arise out of disputes between litigants with standing before the court and provable injuries, whereas European constitutional courts usually have broad jurisdiction to decide abstract constitutional questions in the absence of a concrete dispute. As Ukraine conforms to the European model of constitutional judicial review, the Constitutional Court will decide the constitutionality of a particular issue without any particular dispute involved, so long as the issue is raised by the appeal of an authorized body.
Conclusion
Constitutional judicial review is an important mechanism of checks and balances, which allows courts to exercise review of legal acts and the actions of the other two branches. Judicial review has become increasingly common throughout the world, and its regular exercise serves to strengthen respect for the Constitution, protect fundamental rights, and thus contribute to institutional stability.
There are two different systems of judicial review, one based on the American model and the other based on the European model. The European model, which was adopted in my home country of Ukraine, differs from the American in several respects. The main distinction between the two systems
is that under the European, or the Austrian model, a special institution is established to conduct constitutional judicial review. In Ukraine, this is the Constitutional Court, which is the sole body with constitutional jurisdiction. On the other hand, in the United States all courts consider constitutionality in the course of deciding ordinary disputes. The differences in the systems result from differences in the development of the countries and their legal systems. Some scholars have argued that the American system of generalized and diffuse review makes the Constitution more accessible, whereas others have suggested that a system of centralized and specialized review allows judges to develop an expertise in constitutional law and provides for harmonization of constitutional jurisprudence. While each system has its pros and cons, they both operate effectively in their political and legal environments.
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