A new attempt to classify judicial control over the Constitutionality of laws

Abstract

This study is a recent attempt to reclassify judicial control over the constitutionality of laws, focusing in fact on the matter of who has the final decision on the validity of the legislation: the constitutional judge or the legislator or the power of amendment In some countries, the judge cannot rule out the repeal of the legislation, but only with the incompatibility of the constitution, so that the final decision is left to the ordinary majority in parliament. This is what we call weak judicial control , In most countries, the constitutional judge has the power to repeal the legislation, but it is difficult to overturn this decision by amending the constitution only with a parliamentary supermajority or referendum, which we called strong judicial control. In some countries, the judge, even if there are no clauses prohibiting the amendment, can draw the constitutional identity or the basic structure of the constitution through which the judge can cancel the constitutional amendment that violates this structure This is what we have called the control of the doctrine of strong basic structure. In other countries there is the doctrine of the basic structure and judicial control on the application of this doctrine in the face of the power of amendment, but the original constituent power can be canceled by Constituent Assembly which can replace the Constitution with a new constitution is different from what we called the control of the doctrine of weak basic structure. This classification actually helps to build a model of strong constitutional judiciary independent of other political powers so that the constitutional judge can abort any attempt to destroy or weaken the democratic constitutional doctrine.