Constitutional Law

Judicial review of a statute against the 1945 Constitution is a right of every citizen whose constitutional rights are impaired by a statutory provision, exercised before the Constitutional Court under Article 24C of the Constitution. We have used it, and we are candid about when it is the wrong instrument.

What we have done

Case No. 144/PUU-XXI/2023 — decided 30 July 2024

Petitioner. Review of Article 74(1) and 74(2) of Law No. 20 of 2016 on Marks and Geographical Indications, tested against Articles 28D(1), 28H(4) and 33(4) of the 1945 Constitution. Granted in part: the trademark non-use period extended from three to five consecutive years, and force majeure read into the statutory exceptions. Article 74(3) left intact.

Read the full analysis

When review is the right instrument

Rarely, and the honest answer matters more here than in any other practice area. A petition is appropriate where the harm comes from the provision itself rather than from how a court applied it in one case — where the same outcome will recur for everyone in the same position, however well the next case is argued.

It is the wrong instrument where the real complaint is a decision, an administrative act, or a provision in a regulation below statutory level. Those have their own routes: cassation and civil review before the Supreme Court, administrative proceedings, or judicial review of subordinate regulations by the Supreme Court rather than the Constitutional Court.

What a petition requires

Constitutional standing. A specific, actual or reasonably certain impairment of the petitioner’s own constitutional rights, with a causal link to the provision challenged.
The right constitutional benchmark. Which article of the 1945 Constitution the provision offends, and why — not a general appeal to fairness.
A workable remedy. The Court more often reads a provision conditionally than strikes it out. A petition that offers the Court a precise alternative reading is in a far better position than one that asks only for annulment.
Evidence of practical consequence. How the provision operates in practice, with material showing the pattern rather than one unhappy outcome.

Scope of work

Judicial review petitions before the Constitutional Court
Assessment of whether review, cassation or administrative challenge is the correct route
Legal opinions on statutory interpretation
Expert statements and academic submissions

A note on expectations

Constitutional review is slow, public and uncertain. It is not a way around an unfavourable judgment in a pending case, and we will say so if that is what is being asked for. Where it is the right instrument, it changes the rule for everyone — which is both its value and the reason the Court approaches it carefully.