Research On The System Of Malian Constitutional Review Of Law

The constitutional review of the law is not only a major academic issue in jurisprudence,but also a major issue for Mali in advancing its strategy of governing the country according to law.By using theoretical,empirical,and comparative research methods this dissertation makes a systematic study on issues as the origin,characteristics,scope,standard and weakness of constitutional review in Mali,and puts forward constructive reform suggestions and opinions on the improvement and perfection of Malian constitutional review system with focus of others country theory and practice.The whole dissertation falls into four chapters.Chapter 1 firstly gives analyze about historical evolution and reform of Malian constitutional review system from is origin to the actual constitutional system.It shows that during its evolution,Malian constitutional review has been executed by several jurisdictions with various names.Thus during the period of the first and second republic,the State court and the Supreme Court was responsible for taking care the constitutional review,and during the third republic(actual system)Constitutional court).Mali,through its successive republics,has experienced the mechanism of the constitutionality of laws,variously appreciated in the light of its constitutional history.The advent of constitutional justice in the framework of the constitutional review of laws came with the adoption of Law No.59-18 of 23 June 1959 on the Constitution of the Sudanese Republic(former name of Mali during French colonization period)whose title VII,articulated around four articles,deals with the State Court.Indeed,this law establishes for the first time a State Court and provide its organization,and scope of competence.After national independence from French colonization,the provisions of the law 59-18 of 23 June 1959 about State Court constitutional review will be included in the Constitution of 22 September 1960 of the first Republic of Mali.The Constitution of 22 September 1960 maintains the state court and charges it to ensure the constitutional review through its constitutional section.With judicial reform in 1965,the Law No.65-1 of 13 March 1965 abolished the State Court and transferred the Constitutional Section into the Supreme Court without changing its mission.After the abolition of the State court,the constitutional section of the Supreme Court takes the constitution review in charge.Constitutional Section of the Supreme Court was charged with controlling the constitutionality of the laws until the advent of the Third Republic.On 26 March 1991,the Malian people entered a new phase in their political history.Thus a new Constitution was adopted on 12 January 1992 and promulgated on 25 February of the same year.Article 25 of the Constitution established eight Institutions,including a Constitutional tribunal responsible for controlling the constitutionality of laws.The Constitution of 25 February 1992 devotes its Title IX to the Constitutional Court competencies.The constitutionality review of laws,into the new Constitution,derives its legitimacy from the goal to ensure the protection of the new political system.Secondly,we analyze the insufficiency of Malian constitutional jurisdiction powers in controlling public authorities and protecting citizen rights through constitutional review.We analyze the model of constitutional review applies nowadays in Mali.We have also analyzed the problems concerning constitutional judge independence.Chapter 2 discusses the legal foundations and the nature of legal norms that can be subject to constitutional review in Mali.In the discussion of the sources of the constitutional review,it shows that Mali constitutional review foundation includes the Constitution code(Constitution main body and Constitution preamble),constitutional jurisprudence and organic and procedure of the national assembly.Concerning the laws subject to constitutional review in Mali,there are constitutional law,ordinary laws,and international treaties.Chapter 3 analyses the types and execution problems of Malian constitutional review decisions.In the discussion of the depth of constitutional review decisions types,this dissertation expounds in detail that Malian constitutional judge decisions can be namely classified in two categories: decisions relating to political authorities and decisions relating to judiciary authorities.In the discussion of judge decision execution,we firstly analyzed the conditions of enforcing and the authority of constitutional review decision.Secondly,we analyzed the fundamental problems which affect the efficacy of the current Malian constitutional review system.The problems that affect the constitutional review system have many reasons and explanations.In Mali,the results of actions taken by the constitutional jurisdiction prevent violation of the Constitution are limited in their effects.The analysis of the various decisions of the Malian constitutional court has enabled us to demonstrate the predominance of normative control of State Institutions to the detriment of the protection of the fundamental rights of Malian citizens.Indeed,citizens cannot take legal action against a law that violates their rights and whose constitutionality is contested.The citizen therefore faced with an obstacle that prevents him from enjoying fundamental and universally sacred freedom,namely access to justice in general and constitutional jurisdiction in particular.The right to raise an action before the Constitutional Court reserved solely for political authorities extended to ordinary citizens in matters of constitutionality review of laws.In a liberal democracy,political and public institutions must have as function the satisfaction of citizen interests,and Constitution must offer citizens some rights and guarantees against the state whose omnipotence could be oppressive.It should be mentioned that,at the current stage of normative development,the procedures for reviewing the constitutionality of laws,as provided for in Malian positive law,are not such as to guarantee adequate protection of the fundamental rights and freedoms of citizens.Besides,the problem of the effectiveness of the enforcement of constitutional decisions arises in Mali’s Constitutional justice system.Beyond the conditions of validity of the judge’s rulings and the res judicata authority attached to them,sometimes real obstacles arise in the execution of the Constitutional Court’s judgments by the public authorities.The developments of this thesis showed that adequate protection of the Constitution implies a fight against the violation of the Constitution.However,one obstacle to this struggle remains the difficulty of implementing the decisions of the constitutional court.This difficulty in applying constitutional jurisprudence is due to the absence of sanctions for non-compliance with the Constitutional Court in Malian positive law.In positive law,if it is difficult to do so,it is because it perhaps accepted that the constitutionality review of laws highlights moral,philosophical and political rather than legal considerations.In this case,to prevent constitutional law from being devalued,the recognition of an offence of fraud against the Constitution is required under Malian positive law.This recognition is all the more necessary as the impact of the constitutional violation on the legal order is significant.Indeed,constitutional violation through these multiple manifestations can contribute to changing the nature of a political regime.As a result,it is up to the judicial and political bodies to use the legal means provided by the Constitution and international legal instruments to combat constitutional fraud effectively.Mali must incorporate into its constitutional system a system of sanctions for the nonenforcement of decisions of the constitutional court.That could be a deterrent to potential offenders from respecting the verdict of the constitutional judge.That is the price to pay for the emergence of Constitutional justice in harmony with modern democracy and the rule of law.The failures recorded imply that for the consolidation of democracy in Mali,the protection of the Constitution against constitutional fraud through constitutional review must be placed at the centre of the attribution of the constitutional judge.Protection of the Constitution is not the exclusive task of a single body;it is also the responsibility of each of the institutions recognized by the Constitution to protect the Constitution against the harmful effects of its violation.The constitutional judge is somewhat helpless in the face of actions violating the constitutions because of the abstract nature of the constitutional review system,which does not allow him to apprehend purely personal actions or decisions of public officers that expose the limits of legal positivism.To this must be added the particular fundamentalist approach of the Malian judge,who shows extreme reserve in proceeding with reading other than formal of the acts subject to his control.Finally,the collision between rulers and magistrates cannot be overlooked for some,the lack of courage for others,preferring the non-censure of the constitutional violation.The gloomy picture depicted above should not obscure the fact that in Mali,there are corrective actions by the judge to prevent the growth of constitutional violation.Constitutional justice has often proved to be a real bulwark in protecting the Constitution and censoring laws that are found to be unconstitutional.In short,while the success of the constitutionality review of rules depends on the active involvement of judicial and political actors,the Malian Constitution has a pejorative role in the fight to be waged.Chapter 4 after analyzed the problem of Malian constitutional review,by comparative analyses,we proposed suggestions to improve the scope,standard,power of constitutional judge,and model of constitutional review system in Mali.That improvement can be realized by enhancing the ability of all judiciary organs to maintain constitutional authority,improving the specific rules system for maintaining the authority of the Constitution,establishing a political constitutional review mechanism,drawing on Chinese,French,and the United States to empower social groups to request constitutional review so on.