Corti e Parlamenti. Dialoghi, confronti, comparazioni

The pervasive role of the Courts in relation to the separation of powers is at the core of the reflections on the effective configuration of the constitutional state and on the different dynamics that characterize the institutional structures in contemporary constitutional systems. In terms of comparative public law, two main models have traditionally long confronted each other: the one of undisputed parliamentary supremacy – typical of the British experience – which does not allow the Courts to question the legitimacy of the law; and that of American and European constitutional justice, which, in the name of the superiority of the Constitution, entrusts ordinary or Constitutional Courts to review the law, annulling it or disapplying it in the case of irremediable conflict with the Constitution. In recent years, this radical dichotomy has been progressively attenuated by a different model, currently being developed in some Anglo-Saxon systems (Australia, Canada, New Zealand), as well as in the United Kingdom itself, which have experimented new solutions regarding constitutional relationship between the three powers of the state and where a profound and stimulating debate on the overall role of the Courts is currently taking place.The new model provides, in fact, for a sort of dialogue between Courts and Parliament, on the basis of which the Courts are not allowed to invalidate or disapply any legal provisions in the event of alleged conflict with fundamental rights, but instead it is required to adopt the interpretation of legislation that can be said to be as compatible as possible with the rights themselves. In the case of irreconcilable conflict between law and rights, this model ensures – after the Courts have experimented all possible, permissible, interpretations of the law – the definitive primacy of the legislator’s will, while remaining permitted to the Courts exclusively the adoption of specific declarations of incompatibility, with which they signal Parliament of the existence of the contrast and the need to amend incompatible rules: this amendment may, however, be made only by the legislator, who retains unchanged the constitutional prerogative to give final word on the matter. The new model, therefore, seems to outline a series of interesting constitutional features, worthy of adequate comparative study: a) it tends to activate a new dynamic between the Courts and Parliament in matters of fundamental rights; b) it aims at achieving a greater overall balance in the relationship between the powers of the State; c) it envisages a more active involvement of Government and Parliament in these issues, also through an innovative form of pre-enactment political rights review; d) finally, it tries to reduce the cases of conflicts of interpretation between powers of the State in relation to fundamental rights.