THE SYSTEMS OF JUDICIAL REVIEW AND THE ROLE OF CONSTITUTIONAL COURTS

The result of Kelsen's proposals and their applications in Europe was the development of the concentrated system of judicial review, which attributed specially created constitutional bodies (constitutional courts, tribunals or councils) generally conceived of outside the Judiciary with the power to annul, with erga omnes effects, unconstitutional statutes –this was the initial pattern followed after World War II in Germany, Italy, France, Spain, and Portugal. The system developed as the result of a compromise between the need for a judicial review system derived from the notion of constitutional supremacy and the traditional European idea of the separation of powers, which had denied the courts any power to invalidate statutes.

But in spite of the importance of Kelsen's contributions, it is improper to identify the concentrated system of judicial review as a whole with a so-called “European model,” because there are also concentrated systems of judicial review in which the exclusive and original jurisdiction to annul statutes, without the creation of a special court or tribunal, has fallen to the existing supreme courts of justice, located at the apex of the Judicial Power, as has been the case, since the nineteenth century, in many Latin American countries. In addition, in many Latin American countries, the judicial review system has developed as a mixed system, combining the diffuse and the concentrated methods that function in parallel, as is also the case in Portugal, Greece, and Canada.