Suspended/Prospected declarations of invalidity: a comparative analysis of the Canadian, South African, and Italian judicial techniques

Dichiarazioni di incostituzionalità “sospese”/prospettate: un'analisi comparata tra Canada, Sudafrica e Italia

Abstract

Dichiarazioni di incostituzionalità “sospese”/prospettate: un’analisi comparata tra Canada, Sudafrica e Italia - This paper analyzes the judicial technique known as the suspended declaration of invalidity in three different legal systems: those of Canada, South Africa, and Italy. The main goal is to examine whether these three different constitutional Courts use this decision-making method in the same way or with noteworthy differences. By briefly examining the jurisprudence of these Courts, this paper explains how, while these Courts’ approach is very similar, each of them has developed its own way of entering into a cooperative and dialogic relationship with the legislature. As suggested in this paper, the Italian Constitutional Court seems more incline to preserve the legislature’s margin of discretion by postponing its decision on the constitutionality of the challenged provisions rather than deferring the effects of such decision, therefore adopting a prospected declaration of invalidity, instead of suspending their effects.

Keywords: Constitutional court; Separation of Powers; Suspended declaration of invalidity.