scholarly journals Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion

2018 ◽  
Vol 13 (2) ◽  
pp. 333-357 ◽  
Author(s):  
Matthew J NELSON
Keyword(s):  
Essential Feature ◽  
Judicial Independence ◽  
Basic Structure ◽  
Islamic Republic ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Constitutional Politics ◽  
Judicial Appointments ◽  
Politics Of Religion ◽  
State Relations

AbstractIn both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.

scholarly journals Constituent power and civil disobedience: Beyond the nation-state?

2018 ◽  
Vol 15 (1) ◽  
pp. 49-66 ◽  
Author(s):  
William E Scheuerman
Keyword(s):  
European Union ◽  
Civil Disobedience ◽  
Conscientious Objection ◽  
Radical Democracy ◽  
The Political ◽  
Nation State ◽  
The European Union ◽  
Constituent Power ◽  
Constitutional Politics ◽  
Proper Interpretation

Radical democratic political theorists have used the concept of constituent power to sketch ambitious models of radical democracy, while many legal scholars deploy it to make sense of the political and legal dynamics of constitutional politics. Its growing popularity notwithstanding, I argue that the concept tends to impede a proper interpretation of civil disobedience, conceived as nonviolent, politically motivated lawbreaking evincing basic respect for law. Contemporary theorists who employ it cannot distinguish between civil disobedience and other related, yet ultimately different, modes of political illegality (e.g. conscientious objection, resistance, revolution). The essay also examines Jürgen Habermas’ recent contributions to a theory of mixed or dualistic (postnational) constituent power, conceding that Habermas avoids many theoretical and political ills plaguing competing radical democratic theoretical retrievals. Nonetheless, Habermas’ attempt to salvage the idea of constituent power as part of his reformist agenda for the European Union not only breaks with his earlier understandable skepticism about the idea but also risks trimming the admirably ambitious sails of his radical democratic interpretation of civil disobedience.

The Implications of “Eternity Clauses”: The German Experience

2011 ◽  
Vol 44 (3) ◽  
pp. 429-448 ◽  
Author(s):  
Ulrich K. Preuss
Keyword(s):  
Adverse Effects ◽  
Hierarchical Model ◽  
Final Section ◽  
Constitutional Court ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Basic Law ◽  
Federal Constitutional ◽  
Alternative Understanding ◽  
Conceptual Possibility

This paper explores the conceptual possibility and implications of the concept of unconstitutional constitutional amendments. In the first section, the author argues that unconstitutional constitutional norms are conceptually impossible within the conventional hierarchical model of norms. In the second section, the author discusses the normative particularity of the amending power and concludes that an unlimited power may endanger the constitution. In sections III and IV, the author explains why so-called “eternity clauses,” in order to fend off such a danger, have been designed to place certain immutable elements of the constitution beyond the limits of the amending power. The paradigmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the “eternity clause” with reference to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its consequences for the amending power. The possible adverse effects of “eternity clauses” on the normality of the constitution are briefly considered in the final section.

Comparative Law in the NJAC Judgment

2018 ◽  
pp. 197-207
Author(s):  
Suhrith Parthasarathy
Keyword(s):  
Supreme Court ◽  
Comparative Law ◽  
Judicial Independence ◽  
International Experience ◽  
Judicial Appointments ◽  
The Supreme Court

This essay is an overview of the use of comparative law in the NJAC Case, and offers a critique of the Supreme Court’s analysis of comparative law in judicial appointments. The essay argues that the Supreme Court adopted an isolationist approach by shunning international experience from fifteen countries cited before it by the Union of India to drive home the point that executive presence in judicial appointments does not, by itself, impinge upon judicial independence. The author contests the Supreme Court’s cursory dismissal of relevant international experience on the ground that India, with its peculiar set of circumstances cannot replicate the experiences of other nations in judicial appointments. The author argues that this is self-serving and the judgment would have been better served by a surer grasp of comparative law and its rationales.

Why Constituent Power?

2020 ◽  
pp. 17-40
Author(s):  
Markus Patberg
Keyword(s):  
European Integration ◽  
Legal Order ◽  
Constituent Power ◽  
Constitutional Development ◽  
Popular Participation ◽  
Constitutional Politics ◽  
Political Autonomy ◽  
Methodological Challenges ◽  
The Eu ◽  
Popular Control

This chapter addresses the question of why a theory of constituent power in the EU is needed. While the EU has long since taken on a constitutional character, this is in no way reflected in adequate popular participation in decisions about its basic legal order. The EU is shaped through a combination of intergovernmental treaty making and integration through law that sidelines citizens. Constitutional mutation further decouples the EU’s constitutional development from popular control and shields fundamental decisions from democratic contestation. To capture the legitimacy gap that opens up here, the chapter introduces an understanding of constituent power as political autonomy at the level of constitutional politics. It argues that European integration is based on a usurpation, with constituted powers operating as de facto constituent powers. As executives and courts shape the EU in a largely self-referential manner, citizens are deprived of a crucial dimension of political autonomy. The chapter concludes with preliminary considerations on a theory of constituent power in the EU, addressing substantive and methodological challenges involved in its elaboration, as well as possible objections to the project as such.

The Boundaries of Constitutional Amendment

2019 ◽  
pp. 61-92
Author(s):  
Richard Albert
Keyword(s):  
United States ◽  
New Zealand ◽  
Structural Design ◽  
Basic Structure ◽  
The United States ◽  
Constitutional Amendment ◽  
Constitutional Amendments

Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. They dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old. Changes on this scale are not properly called constitutional amendments. They are better understood as constitutional dismemberments. A constitutional dismemberment is incompatible with the existing framework of the constitution. It intends deliberately to disassemble one or more of the constitution’s elemental parts by altering a fundamental right, an important structural design, or a core aspect of the identity of the constitution. To use a rough shorthand, the purpose and effect of a constitutional dismemberment are the same: to unmake the constitution. But what, then, is a constitutional amendment? This chapter explains that there are four fundamental features to a constitutional amendment: its subject, authority, scope, and purpose. The most important feature of an amendment is its scope, which at all times must not exceed the boundaries of the existing constitution. This chapter therefore defines a constitutional amendment in terms of what it is and what it is not, with illustrations drawn from around the globe. This chapter considers constitutions from Barbados, Belize, Brazil, Canada, Dominica, Guyana, Ireland, Italy, Jamaica, Japan, New Zealand, and the United States.

scholarly journals Introduction: Populist constitutionalism: Varieties, complexities, and contradictions

2019 ◽  
Vol 20 (3) ◽  
pp. 291-295 ◽  
Author(s):  
Paul Blokker ◽  
Bojan Bugaric ◽  
Gábor Halmai
Keyword(s):  
Rule Of Law ◽  
Union Member ◽  
Special Issue ◽  
Constituent Power ◽  
Constitutional Politics ◽  
The Rule Of Law ◽  
Complex Relation ◽  
Established Democracies ◽  
European Union Member States ◽  
Fundamental Values

AbstractThe intense engagement of populists with constitutionalism—a phenomenon originally related to experiences in Latin America—is increasingly evident in some of the new European Union member states. But the populist phenomenon is clearly not confined to more recently established democracies. Populist constitutionalism stands for a number of distinctive tendencies in constitutional politics and practices which frequently are in tension with—and may even threaten—fundamental values, human rights, representative democracy, and the rule of law. The relation between populism and constitutionalism is, however, not necessarily one of anti-thesis, but rather manifests itself in distinctive ways, depending on specific contexts and variations. In this special issue, we argue that populist constitutionalism is best analyzed in a comparative, and historically and contextually attuned manner. The special issue wants to contribute to understandings of populist constitutionalism, which are both theoretically more robust and able to comparatively reflect on a diversity of “really existing” cases. The various contributions discuss central dimensions to the populist phenomenon. These pertain in particular to: (a) The varieties of populist engagement with constitutionalism; (b) a deeper understanding of the populist mindset; (c) the position-taking and reaction of constitutional scholars to populism; (d) the complex relation and overlap of populism with illiberalism and authoritarianism; and (e) the central nature of constituent power in populist projects.

scholarly journals Never let a Crisis go to Waste: Politics, Personality and Judicial Self-Government in Ireland

2018 ◽  
Vol 19 (7) ◽  
pp. 1871-1900
Author(s):  
Patrick O'Brien
Keyword(s):  
Significant Role ◽  
Judicial Independence ◽  
The Political ◽  
Court System ◽  
The Public ◽  
Judicial Appointments ◽  
Independent Mechanism ◽  
Political Patronage ◽  
The Creation ◽  
The Government

AbstractAlthough Ireland is often cited as part of the vanguard of countries adopting forms of judicial self-governance in the 1990s, this appearance can be misleading: the Irish judiciary are self-governing only in limited respects. The judge-led Court Service is in charge of court estate, non-judicial personnel and provision of information on the court system to the public. Many key matters – discipline, promotions and deployment – remain largely out of the control of the corporate judiciary. Judicial appointments are significantly at the discretion of the government. In the last decade, there have been significant moves towards a more corporate judiciary and these are reflected in the creation of a judges’ representative body, the Association of Judges of Ireland, and a shadow Judges Council. There are currently proposals to create a new independent mechanism for appointing judges and to create a Judicial Council with a significant role in disciplining the judiciary.The Irish experience highlights the importance of political and cultural factors in establishing and maintaining judicial independence and self-governance. Despite the significant role for the government in judicial appointments, and the presence of a culture of political patronage in these appointments, there is nonetheless a robust culture ofindividualjudicial independence once judges have been appointed. The creation of the Courts Service in 1999 was a significant transfer of administrative power to the judiciary but it was approved without demur by the political branches, who welcomed the depoliticization of controversial decisions about court estate. Conversely, reforms to judicial appointments have been weak because politicians saw value in maintaining a relatively harmless form of political patronage, and proposals for a Judicial Council that have agreed in outline for two decades have yet to be enacted, apparently because they lack sufficient political salience. The defence of judicial independence, and the creation of robust institutional mechanisms for defending it, ultimately requires the goodwill of politicians.

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