During the past decade the role of constitutional courts has dramatically changed. Today, constitutional courts condition their decisions with the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution in order to preserve them, instead of deciding their annulment or declaring them unconstitutional. More frequently, constitutional courts, instead of dealing with existing legislation, assume the role of assistants or auxiliaries to the legislator, creating provisions they deduct from the Constitution when controlling the absence of legislation or legislative omissions. In some cases they act as 'positive legislators', issuing temporary or provisional rules to be applied pending the enactment of legislation. This book analyzes this new role of the constitutional courts, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.
Allan R. Brewer-Carias has been Professor at the Central University of Venezuela since 1963. He also has been Simon Bolivar Professor at the Law Faculty of Cambridge University (1985-6), where he was a Fellow of Trinity College; at the University of Paris II (1990); and at Columbia University, where he has been Visiting Scholar and Adjunct Professor of Law (2002-4 and 2006-7). He is a titular member of the International Academy of Comparative Law, where he served as Vice President (1982-2010) and of the Venezuelan National Academy of Political and Social Sciences, where he served as President (1997-9). In Venezuela, he was also President of the Public Administration Commission, Senator for the Federal District, Minister for Decentralization and an elected member of the 1999 National Constituent Assembly.
Part I. Constitutional Courts as Positive Legislators in Comparative Law: 1. Judicial review of legislation and the legislator; 2. The role of constitutional courts interfering with the constituent power; 3. Constitutional courts interfering with the legislator regarding existing legislation; 4. Constitutional courts interfering with the legislator regarding legislative omissions; 5. Constitutional courts as legislators on matters of judicial review; Part II. National Reports; Part III. Synthesis Report: Constitutional Courts as Positive Legislators in Comparative Law Preliminary Remarks.