Constitutional courts, also known as constitutional tribunals or constitutional councils, have exclusive jurisdiction over constitutional matters. This includes constitutional review of legislation, regulations, and government acts. More than 80 countries around the world have a constitutional court. Constitutional courts are found primarily in civil law countries. The majority of common law jurisdictions, as well as some civil law countries, instead assign the power of constitutional review to the courts of general jurisdiction. Even lower courts have authority to review constitutional questions, with the supreme (apex) court serving as final arbiter of constitutional interpretation.

illustration of the constitutional court of austria
The rulings of constitutional courts often implicate important social and political issues. For this reason, they are independent institutions, usually outside of the ordinary court system. The jurisdiction and procedural rules of constitutional tribunals vary considerably from country to country. In 1920, Austria became the first country to introduce a constitutional court. The Austrian model, developed by legal scholar Hans Kelsen, was designed to protect against legislative overreach and limit the role of non-constitutional judges to the application of legislation. Constitutional courts have been created in response to major political and social change, as was the case in post-World War II Germany and Japan as well as post-apartheid South Africa. In the 1990’s and early 2000’s, countries with newly established democracies set up constitutional courts to entrench democratic reforms and safeguard fundamental rights. This happened in many post-Soviet Bloc countries as well as in Africa and Latin America.

Authority and Jurisdiction

The contours of a constitutional court’s authority reflect national priorities and historical context. The jurisdiction of some constitutional courts is limited to concrete cases. This can include complaints filed by a litigant and/or petitions from general jurisdiction courts requesting the interpretation of a constitutional issue implicated in a pending case. The Constitutional Court of South Africa is the highest court for cases that raise constitutional questions. It has discretion to hear appeals from the High Court or Court of Appeal and may accept a direct application to sit as a first instance court in “exceptional circumstances.” The Court must review lower court decisions declaring legislation invalid and, at the request of parliament, review the constitutionality of a bill.

illustration of a judge on the czech constitutional court

In contrast, the Constitutional Court of Bulgaria does not hear cases brought by parties but reviews the constitutionality of existing laws and executive decrees. It also is tasked with ensuring that proposed treaties comply with the constitution and international law and has other significant duties such as reviewing elections and presiding over presidential impeachment proceedings. Myanmar offers yet another model. Its relatively new Constitutional Tribunal is tasked with both adjudicating constitutional disputes and reviewing the constitutionality of legislation. Many constitutional courts are empowered to resolve abstract questions that arise outside of litigation; for example, the court may be asked to review the constitutionality of draft legislation or rule on whether there is a potential violation of constitutional rights before a governmental action has been taken. In most EU countries, including the Czech Republic, Ireland, Poland, and Romania, the constitutional court can review legislation before it is promulgated. This review is triggered by a petition from a government entity like the legislature or executive. For example, in Portugal a group of legislators requested the Constitutional Court to assess the constitutionality of a new law instituting a special procedure empowering national security services to access telecommunications and internet data. Belgian law does not limit this right to government entities and authorizes private actors to request abstract review of pending legislation.

Constitutional courts typically exercise some combination of the following powers: Review the constitutionality of amendments to the constitution and adjudicate issues related to the constitution-drafting process

Review the constitutionality of legislation, though in some countries this power may be exercised before legislation takes effect and in other countries the review cannot take place until after the law is passed

  • Review the constitutionality of executive actions
  • Initiate or mandate the introduction of legislation
  • Preside over impeachment and corruption proceedings
  • Review the appointment of certain public officials
  • Hear disputes between state entities

Resolve disputes involving elections and political parties, including the legality of election results There are also different mechanisms for seeking constitutional court review. Most countries employ a combination of the following:

  • Individual Direct Petition: an individual or entity, such as an NGO, may file a case directly with the court.
  • Judicial Reference: a case or legal issue is referred by a general jurisdiction court. For example, during a criminal prosecution, the first instance court may ask for a ruling on the constitutionality of a criminal code provision.
  • Official Reference: a representative of the governmental (e.g., the president) or a government entity (e.g. a human rights commission) refers a case for constitutional review.
  • Legislative Reference: legislators petition the court for review. 

In some countries, constitutional courts also have authority to impose remedies. For example, when Hungary’s Constitutional Court finds a law to be unconstitutional, it may impose a deadline on parliament to address and remedy the infirmity. The Italian Constitutional Court can modify the language of a statute to achieve compliance with the constitution. The responsibilities of a constitutional court may also extend to less clearly “constitution-related” matters. For example, in addition to its jurisdiction over constitutional questions, the Constitutional Court of Portugal is tasked with verifying the incapacity or death of the president.

Judicial Selection, Tenure, Number of Justices

The method for appointing constitutional court justices is different from that used to select other judges. Because of the high profile and often contentious nature of many constitutional questions, nations typically involve multiple entities in the selection process, and most provide for a fixed term of years rather than having justices serve as career judges. In some countries there is a single fixed term, usually 7 – 12 years; other countries allow for two, shorter renewable terms. Constitutional courts typically have 9 – 16 members, including the Court President/Chief Justice.

In some countries the executive has full authority over the judicial selection; in others this power is vested in the legislature. However, most countries involve all three branches of government in the appointment of constitutional court members, with varying levels of authority. The Judicial Services Commission or a specially convened committee also may be involved in the selection of constitutional court justices.

The examples below illustrate the range of approaches to both the number of constitutional justices, the selection process, and the terms of tenure.

Bahrain

The Constitutional Court of Bahrain has seven justices and a president of the court. They serve a single nine-year term. Members of the court are appointed by the king based upon the recommendation of the Supreme Judicial Council, a body responsible for court administration and the selection of judges and prosecutors. The Council, chaired by the king, is composed of judges from the Court of Cassation, Sharia Law Courts, and the High Court of Appeal. 

illustration of colombian constitutional court

Colombia

The 9 justices of Colombia’s Constitutional Court serve a single nine-year term. Justices are elected by the Senate from a list of nominees prepared by the President, Supreme Court, and Council of State. 

illustration of a judge on the constitutional court of germany

Germany

Germany’s Constitutional Court has sixteen justices elected to a single twelve-year term, with a required minimum age of 40 and a mandatory retirement age of 68. Eight members are elected by at least a two-thirds vote of the upper house of parliament and eight by two-thirds of the lower house. Justices are assigned to one of two “Senates” of the Court; at least three of the justices in each Senate must have first served on one of Germany’s supreme federal courts (Justice, Labor, Administrative, Social, Fiscal). 

Italy 

The Constitutional Court of Italy has 15 justices who serve a single nine-year term. Justices are drawn from either the Supreme Court, Council of State, or Court of Auditors or were members of the bar or academia with at least 20 years of experience. Five justices are elected by majority vote of judges on the three high courts, five are elected by the majority of both houses of Parliament, and five are selected by the President. 

illustration of the south korean constitutional court

Korea 

The President of the Republic of Korea formally appoints all 9 members of the Constitutional Court. Three justices are selected based upon the recommendation of the legislature, three are recommended by the Chief Justice of the Supreme Court, and the President selects the remaining three. Justices may serve renewable six-year terms until the mandatory retirement age of 70. 

 

Serbia illustration of south African constitutional court

The Constitutional Court of Serbia is comprised of 15 justices who serve a renewable nine-year term. The legislature, president, and the Supreme Court of Cassation each select five justices. Candidates are drawn from highly regarded members of the bar who are at least 40 years old and have at least 15 years of legal experience. 

South Africa 

The Constitutional Court of South Africa has eleven members, including the Chief Justice of South Africa and the Deputy Chief Justice. Members serve a non-renewable term of 12 – 15 years. When there is a vacancy, the Judicial Services Commission calls for nominations and holds public interviews. The Commission provides the President with nominees, offering at least three names more than the number of vacancies. The President appoints new members of the Court after consultation with the Chief Justice and National Assembly leadership. 

illustration of the thai constitutional courtThailand 

In Thailand, the king formally appoints the nine members of the Constitutional Court to a single nine-year term. Three are selected from among sitting Supreme Court justices elected by secret ballot at a General Assembly of the Court and two are elected in the same manner by the Supreme Administrative Court. A special selection committee nominates two constitutional court justices from among experienced members of the bar and another two from experts in the fields of political science, public administration, or social science. The legislature approves all nominees and sends their names to the king for appointment.