Suspended Declarations of Invalidity: A Comparative Perspective

The article focuses on a particular public law remedy that has gained much attention in constitutional litigation; namely, suspended (or delayed) declarations of invalidity. In tackling this topic, the article adopts a comparative and analytical approach. The comparative method illuminates the widespread use of suspended declarations in several jurisdictions, with sometimes a transnational dialogue between foreign courts and scholars. In addition, comparative material (mainly from Canada, Italy, and South Africa) is useful in identifying issues and possible solutions in the features that characterize the constitutional remedy in question. The analytical approach stems from the desire to go beyond a descriptive account of the judgments presented and to foster legal debate on the appropriateness of suspended declarations. Accordingly, the article engages with the limits and contradictions emerging from resorting to suspended declarations and advances normative suggestions on the use of this remedy. It is argued that, if used carefully, suspended declarations can be a promising remedy to employ in constitutional litigation and a flexible instrument that manages to find the difficult balance between the interests and values at stake.