It is a renowned formality for countries to task either of their judicial bodies with matters concerning judicial reviews. The system is referred to as a Diffuse Judicial Review. Despite its prominence in most countries worldwide, it is hardly the only model of judicial review. Almendares and Le Bihan (2015) accentuate that others include the Austrian, Mixed, and French models. Each of these frameworks is unique in terms of which body handles constitutional matters, what professionals are tasked with the responsibility and the share of power among the different judicial powers. Consequently, the implications for citizens in various countries are subject to the systems in action. Needless to say, the model of judicial review not only determines the harmony in a country but also the ability of state governments to cope with current and emerging trends.
Judicial Review Paradigms
The diffuse system, also known as the American system, grants jurisdiction to ordinary courts to oversee constitutional proceedings. Despite its embodiment of the decentralization of power, still the Supreme Court ensures uniformity in power. The framework is common in countries in Europe, Africa, Asia, and the Middle East (Ely 2017). Contrary to the decentralized system is the Austrian model, also called the Continental Constitutional Review. The system emphasizes the need for exemplary competence in handling constitutional matters. As such, only jurisdiction involving such matters is only granted to specific Constitutional Courts. What is more, is that top-notch judges or judges from the Supreme Court or those from individual chambers are the only ones allowed to handle such cases.
The mixed system is yet another model that incorporates the features of the Austrian and Diffuse systems. While it grants the Supreme Court ultimate power for review of the constitution, it yet again allows ordinary courts such jurisdiction, though on condition that constitutional conformity is ensured (Ely 2017). The framework is popular in countries such as Colombia, Ecuador, Guatemala, and Brazil, among many. The French model is perhaps the most unique among the four models. The system demands that individual bodies oversee constitutional review. More often than not, this either entails individual Supreme Court chambers or the Constitutional Council. Besides, the framework ensures seclusion of such proceedings, especially when the ultimate objective is consultative, for instance in electoral proceedings. It is popular in countries such as Finland, Ethiopia, Afghanistan, China, and Oman. It is worth noting that Almendares, and Le Bihan, (2015), infer that a newer system referred to as the New British Commonwealth Model has been gaining popularity over the past decade. It is neither a European nor an American framework. Its peculiarity is that absolute power for constitutional review is granted to Supreme Court though ordinary judges are allowed to preside over the cases. It is active in Mauritius.
Implications of Various Judicial Reviews
Complains have been particularly pervasive in the mixed judicial system. This may be attributed to the fact that most of the countries only incorporate the concentrated system to modify the diffuse system. As an older framework of review, it is highly likely that the diffuse system is useful in handling each of a country’s challenges. As such, the system is tuned to be more adaptable to current and emerging trends. For instance, in Meico, the Juicio de Amparo has been modified by this model (Malleson, 2016). However, they have been a subject of scrutiny for proffering selfish policies. The French model too has been under the limelight for repressing electoral proceedings. Exempting other bodies from overseeing such actions creates a monopolistic perception to regulation of elections. This creates a loophole to unfairly favor given candidates with whom detrimental policies will be passed.
Even though the diffuse system has been widely acclaimed for decades now, it is proving futile in coping with current and emerging trends. For instance, trade wars have stiffened amongst countries, prompting the prioritization of protectionism as opposed to globalization. The implications on the local and global scale could be dire. Regardless, the system does not necessarily offer reliable solutions regarding the jurisdiction of both the political heads and the judicial systems (Almendares, & Le Bihan, 2015). The Austrian is perhaps the most efficient system of all. Emplacing the fate of a country’s judicial endeavors in the hands of top-notch professionals in the field ensures sound decision making at all times. Such competency also enables a country to cope well with current and emerging trends.
Indeed the Austrian system of constitutional review proves to be the least implicative negatively. Regardless, still, the diffuse model is the most acclaimed worldwide. This may be attributed to it being one of the oldest systems in existence. In a bid to cope with current trends, governmental institutions, especially in South America, have incorporated the concentrated system to complement the diffuse system. However, due to the bias in such collaboration, the system has been a topic has ensued numerous debates regarding their authenticity. The French model has exceptional qualities that emphasize on the need for secrecy in constitutional review. It is this secrecy that has been the source of public scrutiny and the demand for openeness.
Almendares, N., & Le Bihan, P. (2015). Increasing leverage: judicial review as a democracy-enhancing institution. Quarterly Journal of Political Science, 10(3), 357-390.
Ely, J. H. (2017). Toward a representation-reinforcing mode of judicial review. In Constitutionalism and Democracy (pp. 157-194). Routledge.
Malleson, K. (2016). The new judiciary: The effects of expansion and activism. Routledge.