8.2.8.6 Judicial Review by Specialized Courts
Constitutional judicial review can have many features when put in the hands of
special courts: we draw attention to four of them:
- When a question arises about the unconstitutionality of a statute in a case
pending before a court, the court may/must refer the case to the constitutional
court and await its ruling on constitutionality [France (since 2008) and
Germany]. - Members of parliament may refer a statute to the constitutional court to check
for its constitutional validity even after it has been adopted. The court has to rule
on the constitutionality of a statute in the abstract without the statute having been
applied (France—this review only took place before a law adopted by Parlia-
ment entered into force—and Germany). - Individual citizens may file a complaint with the constitutional court, arguing
that their individual rights have been violated by state organs (Germany). - Constitutions or statutes may empower a constitutional court to rule on “other”
constitutionally important issues such as election disputes (France, Germany),
prohibition of political parties (Germany), or conflicts between political agents,
such as between chambers of parliament or a minority in parliament and the
majority/government (Germany).
Judicial review is a potentially powerful instrument. In many states, it has led
constitutional courts to deal with far-reaching issues, such as whether social
security or tax laws should be set aside because of discriminatory aspects. Judicial
review has also tackled several moral issues in relation to constitutions, such as the
right to an abortion, the possibility for homosexuals to get married, and the
protection of the rights of citizens to peacefully demonstrate and associate. As a
result, there is an ongoing debate about the scope of the powers of constitutional
courts, which addresses issues such as
- How does a constitutional court interpret the constitution?
- To what extent should the constitutional court accept the judgment of
Parliament? - How does a constitutional court cope with judgments that might have huge
financial impacts (as might be the case in the domain of taxation)? - How does the court deal with politically sensitive issues, such as the constitu-
tionality of the health care system (decided in 2012 in the US) or the constitu-
tionality of the European rescue fund for the euro (Germany)?
8.3 State Power Democratized
“Democracy” means “rule by the people.” Historically, the term had some negative
connotations, as it sometimes implied anarchy or mob rule. Today, however, the
term “democracy” has a universally positive connotation. Democracy implies that
180 A.W. Heringa