The significance of judicial review of sub-national constitutions and laws in federal states

Marko Stankovic

doi:10.5937/analipfb1403074s

Abstract

This article discusses various issues that emerge as a consequence of constitutional pluralism existing in federal states. Particular attention is dedicated to the relationship between constitutions of federal units and federal constitutions and laws. As a consequence of two coexisting legal systems in a federation, there are as many as six categories of general acts – a constitution, laws and bylaws of the federation, on the one hand, and constitutions, laws and bylaws of federal units, on the other. It is necessary that so many categories of legal acts are in harmony with each other, and this can be ensured only by means of judicial (constitutional) review. Two of the globally most recognized and most representative models of conformity control among different categories of legislative acts – German and American – have been presented. Finally, an attempt has been made to emphasize the importance of such control and the challenges that it may face in the future.

Highlights

This article discusses various issues that emerge as a consequence of constitutional pluralism existing in federal states
When it comes to federation, “a question arises as to the conformity of federal laws and other acts to the federal constitution, but of laws and other acts adopted by federal units to the federal law, which prevails over the law of an individual state with its legally binding character.”[6]. Significant issues may emerge in the sphere of mixed legislative jurisdiction, where we can “imagine a situation in which either of the legislators could get ahead of themselves in the legislative process, and for instance a federal legislator could get engaged in a detailed legislation process instead of dealing with principles only, while a state legislator, through the legislative activity, could be in full breach of any principles adopted by the federal legislator.”[7]
As stated by Jovičić “a solution that provides for subordination of state constitution to the federal constitution and laws shows unquestionable practical values, as it secures the establishment of a unique constitutional and legal system within a federation and it averts the danger of discrepancies between the constitutional and legal systems of the federation and federal units

Summary

FEDERAL SUPREMACY PRINCIPLE AS THE BASIS OF FEDERAL LAW

The federal supremacy principle[1] consists of two elements, i.e. it implies that a federation is a separate political and governmental organization and a “super-state” – a carrier of absolute sovereignty, both international and constitutional. Every federal law is based on the supremacy principle of federal constitution, and in order to consistently follow and administer the principle in practice, appropriate methods and procedures are required to keep such acts and operations contravening the federal constitution at bay. Under such terms, every federal system needs an adequate review of constitutionality.[3] Internal or constitutional sovereignty of a federation is based on the supremacy of the federal law, the protection of which represents the most important task of the constitutional judiciary in federal states. Significant issues may emerge in the sphere of mixed legislative jurisdiction, where we can “imagine a situation in which either of the legislators could get ahead of themselves in the legislative process, and for instance a federal legislator could get engaged in a detailed legislation process instead of dealing with principles only, while a state legislator, through the legislative activity, could be in full breach of any principles adopted by the federal legislator.”[7]

HOW DO SUB-NATIONAL CONSTITUTIONS RELATE TO FEDERAL CONSTITUTIONS?

HOW DO SUB-NATIONAL CONSTITUTIONS RELATE TO FEDERAL LAWS?

36 Compare

CONCLUSION