scholarly journals The Role of the Supreme Court in a Democracy

1999 ◽  
Vol 33 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Checks And Balances ◽  
Equal Status ◽  
The Third ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Law ◽  
The Relationship

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.

scholarly journals Legislative Delegation, the Unitary Presidency, and the Legitimacy of the Administrative State

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Presidential Power ◽  
Political Accountability ◽  
Administrative State ◽  
Checks And Balances ◽  
The Supreme Court ◽  
Legislative Delegation ◽  
The Relationship

This essay focuses on the relationship between non-delegation doctrine and so-called unitary executive theory. It argues that, if the Supreme Court were to embrace unitary executive theory without, as is highly unlikely, tightening up on the non-delegation doctrine, the result would be a constitutional disaster in terms of reduced executive branch legal and political accountability. Increasing the legitimacy of the administrative state ought to involve more, not fewer mechanisms that subject the exercise of presidential power to effective checks and balances.

scholarly journals 12. The Relationship between Parliament, the Executive and the Judiciary

2019 ◽  
pp. 325-357
Author(s):  
Alison L. Young
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
Checks And Balances ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Uk ◽  
The Relationship ◽  
Traditional Understanding

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

Parliamentarism and the Legislative Branch

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Decision Making ◽  
Political Parties ◽  
Legislative Branch ◽  
Effective Decision ◽  
The Law ◽  
Internal Operations ◽  
Effective Decision Making ◽  
The Relationship ◽  
Law Making

This chapter examines the relationship between parliamentarism and the legislative branch. It explores the evolution of the legislative branch, leading to disillusionment with the rationalized law-making factory, a venture run by political parties beyond the reach of constitutional rules. The rise of democratically bred party rule is positioned between the forces favouring free debate versus effective decision-making in the legislature. The chapter analyses the institutional make-up and internal operations of the legislature, the role of the opposition in the legislative assembly, and explores the benefits of bicameralism for boosting the powers of the legislative branch. Finally, it looks at the law-making process and its outsourcing via delegating legislative powers to the executive.

scholarly journals Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

scholarly journals Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

2021 ◽  
Author(s):  
◽  
Matthew Webb
Keyword(s):  
New Zealand ◽  
Cultural Identity ◽  
Supreme Court ◽  
General Application ◽  
The Supreme Court ◽  
The Law ◽  
Court Intervention

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

scholarly journals The Practice of Introducing Restrictions on the Right to Freedom of Peaceful Assembly within Administrative Proceedings and the Place of the Judicial Branch of Power in Determining the Admissibility of Such Restrictions

2020 ◽  
Vol 90 (3) ◽  
pp. 162-176
Author(s):  
М. А. Самбор
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Constitutional Court ◽  
Administrative Discretion ◽  
The Supreme Court ◽  
Executive Agencies ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Understanding

The author has researched the practice of the executive branch of power of Ukraine in establishing a collective (general) ban and restriction of the right to freedom of peaceful assembly under quarantine, as well as the place and role of the judicial branch of power represented by the Supreme Court and the Constitutional Court of Ukraine in determining the constitutionality of such restrictions and prohibitions. The powers of the Supreme Court on the constitutional submission to the Constitutional Court of Ukraine on the constitutionality of the Resolution of the Cabinet of Ministers of Ukraine “On quarantine to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2 and stages of weakening of anti-epidemic measures” dated from May 20, 2020 No. 392 on the establishment of a ban on the exercise of the right to freedom of peaceful assembly within administrative proceedings during the introduction of quarantine in Ukraine, as well as the justification of such a constitutional submission. It is important to analyze and form a legal understanding of the Decision of the Constitutional Court of Ukraine on the unconstitutionality of restricting and prohibiting the exercise of the right to freedom of peaceful assembly during quarantine within administrative proceedings – by adopting the relevant resolution by the Cabinet of Ministers of Ukraine, which was the result of administrative discretion of the highest agency in the system of executive agencies of Ukraine. In this regard, the study focuses on the motivation and validity of the decision of the agency of constitutional jurisdiction and understanding of those legal and social values that were the basis for the judges of the Constitutional Court of Ukraine while adopting the decision dated from August 28, 2020 No 10-r/2020.

scholarly journals CONTROL FUNCTION OF PARLIAMENT AND PRINCIPLE OF DIVISION OF POWERS

THE BULLETIN ◽  
2021 ◽  
Vol 3 (391) ◽  
pp. 148-152
Author(s):  
A.T. Altybaeva
Keyword(s):  
Supreme Court ◽  
Theoretical Basis ◽  
Control Function ◽  
Direct Connection ◽  
Kyrgyz Republic ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Legislative Branch ◽  
Analysis And Synthesis

The article analyzes using the normative and systematic methods, as well as analysis and synthesis, the content of the statements of the Constitution of the Kyrgyz Republic, the Law of the Kyrgyz Republic «On Regulations of the Jogorku Kenesh of the Kyrgyz Republic», decisions of the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic and the works of legal scholars. The article is devoted to the study of the postulate that the principle of division of powers has a deep theoretical basis, which has been developed since existence of institution of state and is aimed at identifying clear boundaries of authority between individual branches of government in order to build their structure so that they serve society. The author came to the conclusion that parliamentary control is in direct connection with the principle of division of powers, in this system it serves and acts as element of mutual control of branches of government. The judiciary today also unequivocally determines inadmissibility of overarching function, the priority role of legislative branch over other parts of government. Parliamentary control is in direct connection with the principle of division of powers, in this system it serves and acts as an element of mutual control of branches of government. According to the author, presence of such control in practice constantly leads to idea of the priority role of legislative branch, which leads to weakening of principle of division of powers. However, it should be noted the implementation of control powers is not aimed at determining the priority of legislative branch in system of division of powers; parliamentary control only organizationally implements of existing powers of parliament.

Equity & Trusts Law Directions

2021 ◽  
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Council Decision ◽  
Key Points ◽  
The Supreme Court ◽  
Farming Families ◽  
The Relationship ◽  
Court Of Appeal

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This book explains the key topics covered on equity and trusts courses. The content of the text is designed to emphasise the relationship between equity, trusts, property, contract and restitution to enable students to map out conceptual connections between related legal ideas. There is also a focus on modern cases in the commercial sphere to reflect the constantly changing and socially significant role of trusts and equity. The book starts by introducing equity and trusts. It then includes a chapter on understanding trusts, and moves on to consider capacity and formality requirements, certainty requirements and the constitution of trusts. Various types of trusts are then examined such as purpose, charitable, and variation trusts. The book then describes issues related to trusteeship. Breach of trust is explained, as is informal trusts of land. There is a chapter on tracing, and then the book concludes by looking at equitable liability of strangers to trust and equitable doctrines and remedies. This new edition includes coverage of significant recent cases, including the Supreme Court decision on interest to be paid by tax authorities on monies owed; the Supreme Court decision on the test of dishonesty applicable to civil matters; the Privy Council decision on the division of investment property acquired by cohabitants; the Court of Appeal decisions on Quistclose trusts; fiduciary duties in arms-length contracts; transactions prejudicing creditors; beneficiary anonymity in variation of trust cases; exemption clauses; discretion exercised beyond trustee’s authority; implications of GDPR for trustee disclosures; trustee personal liability; causation and equitable compensation; statutory relief for a professional trustee’s breach of trust; use of proprietary estoppel to reward work undertaken in farming families; costs of seeking court’s directions; injunctions ordered against persons unknown; equitable jurisdiction to rectify agreements.

Conclusion

2019 ◽  
pp. 252-258
Author(s):  
Martin S. Flaherty
Keyword(s):  
International Relations ◽  
Supreme Court ◽  
Executive Branch ◽  
Foreign Affairs ◽  
Federal Judiciary ◽  
The Supreme Court ◽  
Legislative Branch ◽  
Wrong Direction

This concluding chapter concedes that, in many of the areas considered, on certain issues the federal judiciary has already proceeded perilously far in the wrong direction. Justice Jackson's opinion in Youngstown helps explain why, citing the distinct advantages of the executive in particular in asserting foreign affairs powers in a dangerous world, especially given a subservient legislative branch. The executive's advantages, moreover, may be even more ominously robust than Jackson supposed, and not just because of the nature of modern international relations. The combination of aggressive executive and supine Congress has for some time reached into the composition of the Supreme Court itself. Typical among recent appointments are candidates with executive branch experience and an ensuing commitment to judicial deference to the president, especially in foreign affairs.

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