Towards Better Protection of Fundamental Rights in Mongolia: Constitutional Review and Interpretation

review still exists in Europe, but there is a rise of constitutional review connected to concrete cases. Section 2.2 has shown that the constitutional court has not only the abstract review but also constitutional question and the constitutional complaint jurisdictions. The latter two are the main procedures of the constitutional courts and the efficient devices for protecting fundamental rights in Europe. For example, most cases are filed in the Federal Constitutional Court of Germany through the constitutional complaint and constitutional question. The constitutional complaint is first in importance (122,256 cases, with 96.14 % of the total number of cases filed between 1951 and 2000), constitutional question second (3,121 cases, 2.45 %), and abstract review third (140 cases, 0.11 %). According to Antonio La Pergola, the constitutional complaint is one way European constitutional brand of justice has come “nearer to the spirit, if not the technicalities, of the judicial review of the American type.” Thus, constitutional review related to concrete cases tends to dominate not only in countries having the American model, but also in countries whose constitutional courts exercise the constitutional complaint or the constitutional question jurisdictions. The American judicial review is mostly related to concrete cases due to the constitutional requirement of “cases and controversies” as Section 2.1 showed. However, the U.S. courts make the abstract review of constitutionality of statutes before their enforcement and without a concrete case or controversy in a very limited sense. For example, Alec Stone Sweet and Martin Shapiro developed a new argument in which abstract review occurs most often in one of the following two situations in the United States: First, under certain circumstances, plaintiffs may seek declaratory or injunctive relief by a judge, which, if granted, suspends the application of the law in question pending a judicial determination of its constitutionality. Plaintiffs commonly file such requests 66 Sweet, “Why Europe Rejected American Judicial Review,” 2772. 67 Beyme, “The German Constitutional Court in an Uneasy Triangle Between Parliament, Government and the Federal Laender,” 105. 68 Pergola, “Introductory Statement,” 10. 69 For that the most dominant review procedure is constitutional question in Italy, and the Italian judicial review has the hybrid nature of American and European models, which helps to increase the degree of concreteness of the Constitutional Court judgments, see Rolla and Groppi, “Between Politics and the Law: The Development of Constitutional Review in Italy,” 148. Two Models of Constitutional Review 55 immediately after the statute has been signed into law by the appropriate authority. Second, under judicial doctrines developed by the US Supreme Court pursuant to litigation of First Amendment freedoms, plaintiffs may attack a law on its face, called a ‘facial challenge’, and plead the rights of third parties. Sweet and Shapiro call these two situations respectively the doctrine of declaratory or injunctive relief and the doctrine of facial overbreadth and vagueness. The very limited abstract review has developed in American constitutional case law. For their argument, Sweet and Shapiro discussed a decision of the U.S. Supreme Court, which ruled on offensive speech in cyberspace under the American abstract review. In 1995, the U.S. Congress enacted the Communications Decency Act (CDA), which sought to regulate “indecent” and “offensive” expressions (pornography) on the Internet. On February 8 1996, the day President signed the CDA into law, 20 public interest and business groups filed suit in a Federal District Court to prohibit the Federal Government from enforcing two of its key provisions. The plaintiffs claimed that two provisions of CDA violated freedom of expression guaranteed by the First Amendment to the U.S. Constitution, and asked that the court enjoin the law’s application. A district court agreed with the plaintiffs, and issued a preliminary injunction against the enforcement of the challenged provisions. On appeal, the Supreme Court upheld the district court’s ruling, invalidating the law as unconstitutional for facial overbreadth and vagueness. Sweet and Shapiro argued that American case law has developed the doctrine of declaratory or injunctive relief and the doctrine of facial overbreadth and vagueness, both of which make the abstract review of statutes possible at least in a limited sense. The reasoning in the CDA decisions was so abstract that judges developed a judicial construction with hypothetical situations, narratives with abstractions as characters, stand-ins for real people facing challenging dilemmas. Sweet and Shapiro wrote the following: [In this decision], American judges imagined an average ‘speaker’ interested in ‘serious discussion of prison rape, homosexuality, [or] birth control.’ They read the text of the 70 Shapiro and Sweet, On Law, Politics, and Judicialization, 347; These two authors also argue that the U.S. concrete review includes “many abstract counter-currents,” elements of abstract review, because the abstract and the concrete are inseparable. Ibid., 366–373. 71 Reno v. the American Civil Liberties Union. 65 U.S. For the detailed analysis of the abstract review in this decision and abstract reasoning, see Shapiro and Sweet, On Law, Politics, and Judicialization, 353– 358.