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Models of Judicial Review

Updated on July 23, 2016

The United States’ Diffuse Model of Judicial Review.

The United States’ model of judicial review, also known as the American or the Diffuse model is regarded as the most widespread model of constitutional review. In this model, all courts, from the lowest court to the highest court are tasked with reviewing the constitutionality of administrative measures and statutes (Corrado 2005). This is done in specific proceedings while adhering to common procedural rules. In this model, decisions normally come into effect inter parties. Consequently, decisions regarding the unconstitutionality of statutes are retroactive; that is; ex tunc, meaning they have pro praeterito consequences. The state of a true institution with the power to grant constitutional review must only be held by the organization that in the precise system of the parting of powers that holds such a restrictive relation to the Parliament. The Constitutional Court is an important body that holds a particular legal superiority in about the other branches of authority and also as the bearer of the defense of constitutionality. Its review covers all governmental acts that are the main legal instruments of the precise political and legal system. It is a judicial organization established for exclusive and special decision-making powers on clauses pertaining all the constitutional matters. The institution is usually situated outside the regular court system and is entirely sovereign of other branches of the public authorities.

Models of Judicial Review

Source

A Comparison of the United States’ Diffuse model to the Concentrated and the No, review model.

Decisions in the Concentrated model of review carry an ex nunc effect with future pro costs. This means that the abrogation resulting from the declarations regarding unconstitutional statutes only take effect at the precise moment when the ruling on abrogation has been given by the court (Corrado 2005). This is in contrast with the United States’ Diffuse model where rulings made on the unconstitutionality of statutes are retroactive. The No review model is a system that upholds the supremacy of the legislature or parliamentary sovereignty. The idea here is that the legislative body has to be superior and more powerful than the other branches of the government. The justification for this model comes from the fact that the people elect the representatives in the state or regional legislative bodies. Consequently, the judiciary is barred from coming up with or challenging laws originating from the legislature. This results in a situation where the judiciary is denied a chance to check on the power of the legislature unlike in the American Diffuse model where such checks are provided for. The judicial review of the United States was regarded as an ordinary function of the judicial sector the integration of judicial review in Europe occurred very slowly.

The Concentrated model of judicial review

The Concentrated model of judicial review, also known as the Austrian or the European model is a model used by Constitutional Courts that specialize in the review of the constitutionality of statutes (Corrado 2005). These reviews are carried out in special proceedings and as such, they are less widespread. In this model, the rulings of the constitutional review entity carry an erga omnes effect, as such; they may proclaim unconstitutional statutes to be abrogated. These rulings have an ex nunc outcome with future pro consequences. This model has been employed in countries like Costa Rica, Chile, Austria and several European countries like Germany (Vanberg 2005).

Mixed model

This model incorporates the Diffuse and the concentrated models of constitutional review (Corrado 2005). It is employed in countries like Colombia, Brazil, Peru, Guatemala, Venezuela and Ecuador. In most cases, these countries have altered the initial Diffuse model by adapting it to their prevailing circumstances. This is the case in Mexico and Argentina. In Mexico, the specific juicio de Amparo that is normally used as a form of constitutional complaint has been integrated with this model. It is possible for the Concentrated and Diffuse models of judicial review to coexist within a country. Mixed models have been characterized by the popular complaint as is the case with several countries.

Other systems

In some countries like Cuba, there is a special model of judicial review. According to the Cuban constitution that was enacted on 24th February 1976, the privilege of reviewing constitutional statutes is vested in the National Assembly, which is the legislative body.

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