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Can courts nullify/strike down rules of the legislature if they violate fundamental rights?

In the U.S., the courts have a final say on whether a statutory provision is constitutional, and if it is not, then it is immediately ineffectual, with immediate (non-) effect.

In the UK, the fundamental protections of the human rights act is more of a preferred overlay, but in case of a true conflict, it doesn’t override other laws without parliamentary say so, due to the principle of Parliamentary sovereignty/supremacy, so the best a court can do in case of a law which violates fundamental rights is to issue declarations of incompatibility.

Which countries follow the more former paradigm, especially in Europe?

ohwilleke
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TylerDurden
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5 Answers5

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The Bundesverfassungsgericht can strike down laws if they are against the constitution. Laws are generally passed with a simple majority (sometimes just of the federal legislature, sometimes also of the states' chamber), the constitution requires a supermajority, and some parts of the constitution are protected from changes which "affect their essential content."

So the Verfassungsgericht can (and regularly does) tell the legislature what laws it may not (or must) enact, based on the constitution which was passed or amended by a previous legislature or even the same session. For instance, the court concluded that principles of the protection of future generations require more climate protection today.

o.m.
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What “fundamental rights”?

The courts can strike down any law that violates the Constitution, however, apart from the free exercise of religion, the Australian Constitution contains no explicit guarantee of rights. Nor is there are seperate Act of Parliament that provides one.

There are, however, implicit rights in the Constitution.

The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals.

This was decided in 1992, and, in the thirty years or so since, no other rights have been found.

The courts can strike down a law if it violates one of these two rights, but, providing the law stays within a head of power granted to the Federal government by the Constitution, they cannot disallow them.

States vary on whether they have a bill of rights, for example, does, doesn’t. However, these always have a “get out of jail free card” allowing Parliament to explicitly override the rights - the Victorian escape clause is s31. This is essentially the same as the UK’s concept of Constitutional Acts which also require explicit rather than implicit overruling.

Australia, while it does have special purpose courts and tribunals (e.g. various Administrative Appeals Tribunals, Land and Environment Courts etc), does not have dedicated Constitutional courts. Any court with jurisdiction over a case could declare a law unconstitutional. Note that state courts have Federal jurisdiction but not vice-versa.

Dale M
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To the extent that a fundamental right has been constitutionalized, courts can render laws that unjustifiably infringe that right to be of no force or effect.

In interpreting a law alongside section 52(1) of the Constitution Act, 1982, and alongside the Canadian Charter of Rights and Freedoms, courts have the power to issue "declarations of unconstitutionality." This of course does not remove any law from the statute books; that would require legislative action. But the court does, truly, declare the impugned law to be unconstitutional and to have no force or effect.

Jen
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In France, courts have traditionally been very shy about nullifying legislation or looking at the constitutionality of specific decisions. In particular, the Conseil d'État explicitly worked from an assumption that if a law was passed by the parliament, judges must not look “beyond it” at the constitution (the so-called “legislative screen” theory, formalized in the Arrighi case in 1936). The Cour de Cassation has a similar stance and the Conseil Constitutionnel initially had a very limited role that was gradually extended.

From a procedural point of view, the Conseil Constitutionnel can only review statutes before they are “promulgated” and only when asked to do so by the president, the prime minister, or the speaker of either chamber of parliament. Initially, the review focused primarily on the scope of the law (whether it was within the remit of parliament under the constitution), not so much on human rights, and this review was basically a tool in the hands of the president to constrain parliament.

The Liberté d'association decision in 1971 affirmed that the preamble of the previous constitution (the 1946 constitution) and the Declaration of the Rights of Man and of the Citizen, which are both mentioned in the 1958 constitution, are to be understood as an integral part of it. This gave the court new ways to nullify laws to protect fundamental rights. Then, in 1974, it became possible for a group of 60 members of parliament to refer a statut to the Conseil Constitutionnel thus opening the procedure to the parliamentary opposition. Even after this reform, neither individual parties to a trial nor the court itself could initiate a review.

This is still broadly the case but two important developments have given the courts more levers to nullify legislation:

  • The 2008 reform introducing the “Question prioritaire de constitutionnalité” created for the first time a (somewhat complicated) procedure to review the constitutionality of a statutory provision a posteriori during litigation. However, low-level courts or individual judges still cannot set aside statutes, they have to ask the Conseil Constitutionnel to do it through either the Conseil d'État or the Cour de Cassation.
  • The 1989 Nicolo decision of the Conseil d'État. Here again, the Conseil d'État won't assess whether a particular statutory provision is constitutional but it will set it aside if it violates a treaty and has therefore been able to use the European Convention on Human Rights (ECHR) as a quasi-constitutional bill of rights. After this decision, it became possible to invoke the ECHR in front of all lower courts within the administrative order.

This has brought French courts closer to the first paradigm in your question.

Relaxed
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In France, and I suspect elsewhere in the European Union, fundamental rights are guaranteed by the Constitution (and other constitution-like texts) on one hand, and by the European Union treaties, in particular the Charter of Fundamental Rights

Constitution

Parties in a trial (but not the judges) can raise an objection as to the compliance of a law with the constitution; this is known as a "Question Prioritaire de Constitutionalité" (priority preliminary ruling on constitutionality). If the problem raised is serious and original enough, then the trial is put on hold until the constitutional court rules on the issue. If they find the law to violate the constitution, it is stricken, as if it were never passed (most of the time - delayed application of QPC rulings would be a good separate question).

European treaties

Judges (and not parties in a trial) can ask the Court of Justice of the European Union a question on the interpretation of the treaties.

psmears
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Maxime
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