scholarly journals LAW, DEMOCRACY, AND CONSTITUTIONALISM: REFLECTIONS ON EVANS v ATTORNEY GENERAL

2016 ◽  
Vol 75 (1) ◽  
pp. 38-61 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Attorney General ◽  
Judicial Decision ◽  
Basic Principles ◽  
Constitutional Convention ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Correct Reading ◽  
The Difference

AbstractThe difference of judicial opinion in the Supreme Court in Evans provokes reflection on fundamental constitutional principles, such as parliamentary sovereignty and the rule of law. A statute that on its face seems to permit a government minister to override a judicial decision of which he disapproves inevitably raises acute concern; the correct reading of the statute depends on the most persuasive integration of basic principles, placing the text within its wider constitutional context. The Justices deployed distinctions between law, fact, and public interest in rather different ways, reflecting their divergent interpretative approaches. The role of constitutional convention is also of particular interest – central to the legal issues arising, on one view, but largely irrelevant on another. At the root of these disagreements lie contrasting conceptions of law and adjudication.

THE RULE OF LAW, PARLIAMENTARY SOVEREIGNTY, AND A MINISTERIAL VETO OVER JUDICIAL DECISIONS

2015 ◽  
Vol 74 (3) ◽  
pp. 385-388
Author(s):  
T.R.S. Allan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Attorney General ◽  
Fundamental Principle ◽  
Basic Principles ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Straightforward Approach

R (Evans) v Attorney General [2015] UKSC 21; [2015] 2 W.L.R. 813 is a case of real constitutional interest and importance. The division of opinion within the Supreme Court reflects divergent conceptions of fundamental principle. While all the Justices affirmed the principles of parliamentary sovereignty and the rule of law, they understood them differently, resulting in disagreement about their correct reconciliation on the facts of the case. The majority of Justices achieved a real integration of these basic principles in a manner that the dissentients’ superficially more straightforward approach did not.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

Debating the Indian Supreme Court: Equality, Liberty, and the Rule of Law

2015 ◽  
Vol 13 (3) ◽  
pp. 353-368 ◽  
Author(s):  
Jinee Lokaneeta
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Political Liberty ◽  
The Rule Of Law ◽  
Criminal Defendant ◽  
Recent Scholarship ◽  
The Supreme Court ◽  
Indian State ◽  
Indian Supreme Court

In this essay, I explore some of the contemporary debates on the role of the Indian Supreme Court in the context of equality and liberty at a moment when it appears that the very reasons for the celebration of judicial review and interventions are under attack by progressive scholars and activists. In reviewing the debates on the role of the Court, I focus on one particular contention that since the realm of social/equality was paramount for the Indian state as a whole, and the Supreme Court post-emergency, the realm of political/liberty was consequently ignored. By revisiting the debate on equality trumping liberty, I acknowledge the critiques of the Court but also point to ways in which certain facets of political liberty do get addressed even in the absence of a focus on liberty. Even if by themselves these judicial interventions may be inadequate to create a due process revolution as far as criminal defendant rights are concerned, they create an “arsenal of tools” available for those concerned with liberty and justice. At the very least, such a conception portrays the Court as less unidimensional than characterized by recent scholarship and retains the Court as a productive site of contestation.

scholarly journals Basic international and European standards in the field of justice and their impact on ensuring the consistency of judicial practice

1970 ◽  
pp. 74-80
Author(s):  
Petro Rudyk
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Standards ◽  
Council Of Europe ◽  
Basic Principles ◽  
Legal Standards ◽  
Judicial Practice ◽  
The Supreme Court ◽  
European Standards

Ukraine's integration into the European Union binds the former to approximate its legislation to international and European standards in various fields, including justice. This is also prompted by the EU-Ukraine Association Agreement and by the need for judicial reform, subject to the amendments to the Constitution of Ukraine of June 2016. The purpose of the article is to disclose basic international and European standards in the field of justice and their role in ensuring the consistency of judicial practice, which has not been studied in this aspect before. Scholars have different approaches to defining the concept of "international" and "European" legal standards in the field of justice and their division into types. The author proposes the understanding and definition of these concepts and the division of international standards into two main groups: 1) basic generally recognized international standards, that is binding international legal standards; and 2) special international standards in the field of justice that are advisory. The first group consists of the basic internationally recognized standards enshrined in UN human rights instruments, which are closely related to justice and include, in particular, everyone's entitlement to a fair and public hearing by a competent, independent and impartial tribunal. They are enshrined in the Universal Declaration of Human Rights (Article 10), the International Covenant on Civil and Political Rights (Article 14), the European Convention on Human Rights (Article 6, paragraph 1). These basic international standards are binding for democratic countries in the world and in Europe, in particular for Ukraine, as they have been ratified by it. A clear understanding of and adherence to mandatory basic internationally recognized international standards by courts of all tiers will help to ensure the consistency of judicial practice. The second group of international standards in the field of justice consists of the Basic Principles on the Independence of the Judiciary, approved by the resolutions of the UN General Assembly (1985), the Bangalore Principles of Judicial Conduct, approved by the UN Economic and Social Council Resolution (2006), recommendations of the Committee of Ministers of the Council of Europe, and opinions of the Consultative Council of European Judges for the attention of the Committee of Ministers of the Council of Europe, etc. They emphasize the need to adhere to such basic international standards as guaranteeing the independence of the judiciary by the state and enshrining them in the constitution or laws of the country, and define such basic principles of the functioning of the judiciary and judges as independence, objectivity, honesty, incorruptibility, observance of ethical rules, equal treatment of all parties to the proceedings, competence and diligence of courts, and so forth. Compliance with these general international standards in the field of justice will help to ensure the integrity of the judiciary in the interests of a person. Such standards and specific recommendations for ensuring the integrity of the judiciary are broadly outlined in the Consultative Council of European Judges Opinion on the Role of Courts in Ensuring the Unity of Law (2017), namely the importance of uniform application of the law, the possibility of the use of precedents, the paramount role of the Supreme Court in ensuring the integrity of the judiciary, the creation of a mechanism for filtering appeals, the inadmissibility of conflicting decisions, the importance of the role of the courts of appeal, the solid reasons for deviation from previous judicial practice, the compliance with the reporting system of courts, the application of previous decisions to specific cases, the ensuring of the principle of independence of judges, the use of various mechanisms to ensure the integrity of judicial practice. These issues were also discussed during the presentation of the Opinion in Ukraine and holding the conference Integrity of judicial practice: the view of the European Court of Human Rights and of the Supreme Court (2019).

scholarly journals Media Control On Corruption In Local Goverment ; Create Clean And Justice Government In South Sulawesi Province (Analysis of the Role of the Media in the Era of Regional Autonomy)

2020 ◽  
Vol 7 (2) ◽  
pp. 119-132
Author(s):  
Hafied Cangara ◽  
Subhan Amir ◽  
Nosakros Arya
Keyword(s):  
Attorney General ◽  
Governmental Organizations ◽  
Local Newspapers ◽  
South Sulawesi ◽  
Non Governmental Organizations ◽  
The Media ◽  
The Difference ◽  
The Government ◽  
Community Newspaper

This study aims to determine the role of community newspaper in carrying out its oversight function of corruption in South Sulawesi province, Indonesia. The type of research used is the content analysis and in-depth interviews with several key informants, including the mayor, the attorney general, the police, non-governmental organizations, and newspaper publishers. The unit of analysis is four local newspapers namely Pare Pos, Palopo Pos, Radar Bone and Radar Selatan. These four newspapers were published outside the provincial capital of South Sulawesi, Makassar. Data analysis used the Single Factor Analysis of variance (ANOVA) or one-factor ANOVA (One Way ANOVA) test. The findings of the study show that: (1) the media has a role in carrying out its oversight function of corruption in government institutions in South Sulawesi, although this is not solely because of the media, but also the regulation and supervision carried out by the government through the bureaucratic path, (2) The portion of community newspaper coverage of corruption is quite large compared to other themes. However, judging from the tone of the news in general, it is still nuanced with information, and there has not been much investigated reporting. (3) Judging from the frequency of the coverage of these four newspapers, the Palopo Pos Daily and Radar Bone Daily showed a trend in reporting corruption issues, while the Pare Pos and Radar Selatan Daily tended to focus more on public service issues, for example waste, road, drinking water, electricity and traffic problems. However, statistical analysis showed that the difference was not significant.

Rules for Courts: The Role of Lawyers, Judges, Professors and Government

1978 ◽  
Vol 13 (4) ◽  
pp. 459-473
Author(s):  
Jack B. Weinstein
Keyword(s):  
United States ◽  
Criminal Procedure ◽  
The United States ◽  
Civil Procedure ◽  
Federal Courts ◽  
Criminal Trials ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court

This discussion covers some methods and institutions for changing procedures in the courts. More particularly, I refer to procedures for conducting litigations in courts of general jurisdiction, that is to say, civil procedure, criminal procedure and evidence.Since criminal procedure and evidence are controlled here by statutes, I realize that when the terms “rules” or “regulations” are used you would normally think only of civil procedure. I use the term “rules” in a broader sense since in federal courts in the United States, most procedure governing civil and criminal trials and appeals, including evidence, stems from rules promulgated by the Supreme Court of the United States, subject to modification by Congress.I shall describe briefly the history and present situation in the United States, making some reference to the British method, touch on the Israeli method, and then draw some general conclusions, raising some questions about the Israeli pattern as I understand it. These countries are comparable since each has a strong, independent judiciary and a tradition of freedom and the rule of law.

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

The Complexity of Sabbatino

1964 ◽  
Vol 58 (4) ◽  
pp. 935-951 ◽  
Author(s):  
Richard A. Falk
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Judicial Decision ◽  
Partial Analysis ◽  
The Supreme Court ◽  
Supreme Court Decisions

Banco Nacional de Cuba v. Sabbatino is a seminal decision, interpreting significantly the role of a domestic court in an international law case. At the same time, it avoids reaching definitive results. Very little is settled once and for all by the Supreme Court. This realization prompts caution. Sabbatino will not yield an authoritative interpretation, except, perhaps, as a consequence of subsequent Supreme Court decisions. A commentator must be content, therefore, with the less dramatic claims of provisional and partial analysis. Those that claim more are misleading us. The complexity of Sabbatino is almost certain to poison hordes of over-clarifiers who are descending upon this major judicial decision as vultures upon a freshly dead carcass.

scholarly journals The Role of History and Akhlāq in Reconciliation Between Jurisprudence And Modernity

Jurnal Fiqh ◽  
2021 ◽  
Vol 18 (2) ◽  
pp. 241-260
Author(s):  
Meysam Kohantorabi
Keyword(s):  
Human Rights ◽  
Research Method ◽  
Historical Context ◽  
Basic Principles ◽  
Islamic Ethics ◽  
Library Resources ◽  
The Difference

After the advent of modernity and its spread in Islamic societies, challenges arose for Muslims. At first glance, these challenges indicated the conflict between modernity and religion in general and jurisprudence in particular. For this reason, some Muslims have strongly rejected modernity, calling it the destruction of religion. Some also have abandoned religion and solely followed modernity. The purpose of this article is to provide a way to resolve differences and reconciliation between jurisprudence and modernity so that Muslims can benefit from the achievements of modernity while maintaining the basic principles of religion. To achieve this goal, jurisprudential sources were examined and jurisprudential fatwas that conflicted with modern laws were extracted. The research method in this article is based on library resources and has been criticized descriptively and analytically. To clarify the issue, examples of jurisprudential fatwas have been proposed. It should be noted that these are not all fatwas and are just examples because the purpose of this article is to provide a solution to resolve the conflict or reduce the difference between jurisprudence and modernity. In some cases, the communities that have implemented the fatwa have also been mentioned. After examining the origin of these fatwas, it became clear that some of them were related to specific circumstances and specific times, and others conflicted with the basic principles of ethics. Therefore, the finding of this article is that there are two basic strategies to resolve or reduce this conflict; firstly, the jurisprudential fatwa should be adapted to the principles of Islamic ethics; and secondly, the historical context of the issuance of the fatwa should be considered. This leads us to the conclusion that some fatwas can only be implemented in certain circumstances and can be revised today due to the change in those circumstances. By applying these two strategies, it is possible to reconcile to a large extent between jurisprudence and that part of the achievements of modernity that are compatible with human rights and dignity.

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