The Constitutional Justice and Protection of the Human Rights (The Constitutional Court of Republic of Macedonia - Dilemmas and Prospects-)
AbstractAn unusual mystique envelops the institute of judicial review, even after its 200 years practicing. The conventional story for its appearing is tied to the case Marbury v. Madison from 1803 and the inventive judgment of Chief Justice Marshall which ‘insidiously’ usurps the authority of the courts to refuse the application of unconstitutional laws. It seems that the argumentation of the judgment Marbury v. Madison produces more dilemmas than it solves, regarding the institute judicial review. Thus, Marshall’s thesis “It is the courts jurisdiction to say what is law”, delicately imposes the question whether that court authorization equally refers to the Constitution. However, even though it is considered a masterpiece of political maneuvering, the judicial precedent in the case Marbury v. Madison from 1803 is deemed a true beginning of constitutional review in USA and in the whole constitutional history of the modern world.The development of constitutional review in the European countries completely deviates from the accepted idea and practice of judicial review by the courts on the American continent. The review of the constitutionality of laws in Europe met strong resistance in both the legal and political theory and the practice. The point of view that the passed laws represent the general will, or the expression of the sovereignty of the state, and the limitation of the role of the judges to application of the passed laws in specific cases, leaves the judges without the possibility to further explore the will of the lawmaker and to “diagnose the pathology” of the system. The inability to enact the system of control of constitutionality of law, was frequently argumented with its incompatibility with the principle of people’s sovereignty. Until the adopting of the Constitution of Austria in 1920, which implements the control of constitutionality by the Constitutional court, the European countries will remain crucified between the need of an institution for control of constitutionality of law on one side, and the respect of the long constitutional tradition and the thesis of Montesquieu that “the judicial power is no more than the mouth of the law (bouche de la loi)”.
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