Constitutional Review in New Democracies

Abstract

The establishment of a judiciary with the power of constitutional review — determining whether government actions comply with the constitution’s provisions — is now considered a standard component of a democracy. It is increasingly common to entrust the power of constitutional review to a specialised constitutional court that can issue authoritative decisions on the constitutionality of laws and government actions and can interpret the constitution’s provisions. A constitutional court can play many important roles, including reviewing the constitutionality of legislation, protecting individual rights, providing a forum for the resolution of disputes in a federal system, enforcing the separation of powers, certifying election results, and assessing the legality of political parties. Establishing a court with the power to review the constitutionality of laws and government actions provides political parties and groups with a form of “insurance” for future scenarios in which they may not be in government and want to make sure that a government formed by their opponents acts within the limits of the constitution. A constitutional court is a means of institutionalising the commitment made by all parties when drafting the constitution to abide by its provisions. Furthermore, foreign investors often regard an independent and well-functioning judiciary as a sign of a country’s stability and investment potential. There are many options in designing a constitutional court, yet some recommendations can be made on a number of key design questions concerning the relationship between ordinary courts and constitutional court, court membership, jurisdiction, access, and remedies.

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