The Legal Nature of Review by Plea (Incidental Review)

Abstract

Most legislation regulating the constitutional review adopted review by plea (incidental review) as a legal mechanism for initiating constitutional proceedings. This process occurs when a legislative text of dubious constitutionality is challenged before the trial judge (judge of the merits). 

 The latter preliminarily examines its constitutionality, refrains from applying the law to the dispute, and stays (suspends) the original proceedings until the fate of the contested law is determined. This is followed by the litigant who raised the plea filing a constitutional action before the Supreme Constitutional Court (by its various names) to adjudicate the plea.

This mechanism has sparked significant jurisprudential (scholarly) disagreement regarding its precise legal nature.