Canada's Constitutional Revolution: From Legislative to Constitutional State

1999 ◽  
Vol 33 (1) ◽  
pp. 13-50 ◽  
Author(s):  
Lorraine Eisenstat Weinrib
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Majority Rule ◽  
Bill Of Rights ◽  
Canadian Charter ◽  
Rights Protection ◽  
Constitutional State ◽  
Constitutional Revolution

… ‘true’ democracy recognizes the power of the constitution — fruit of the constituent authority — to entrench the fundamental human rights and the basic values of the system against the power of the majority. Such a limitation of majority rule does not impair democracy but constitutes its full realization.In 1982, Canada's written constitution acquired a bill of rights. The Canadian Charter of Rights and Freedoms, 1982 emerged as the product of a prolonged debate as to the propriety and desirability of protecting, by judicial review, an array of constitutional norms as part of the “supreme law” of Canada. The richness of that debate precipitated a new constitutional model that enlisted not only the courts, but the legislature and executive as well, in the project of rights-protection.

The Declaration of Independence as a Transitional Constitution: The Case of Israel

2016 ◽  
Vol 8 (1) ◽  
pp. 57-89 ◽  
Author(s):  
Michal Tamir
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Judicial Review ◽  
Bill Of Rights ◽  
Declaration Of Independence ◽  
Human Rights Regime ◽  
The Supreme Court ◽  
History Of ◽  
Constitutional Regime ◽  
Constitutional Revolution

In the two decades since Israel’s constitutional revolution, the Basic Laws have come to enjoy normative supremacy and demonstrate efficacy by enabling judicial review of the legislative and the executive branches. Yet, they have not assumed an integrative role in the Israeli society. In terms of their substance, the Basic Laws are incomplete in scope. In terms of the procedure leading up to their enactment, they lack public legitimacy. This can be attributed, at least in part, to the fact that the Supreme Court was the key political actor responsible for retroactively upgrading the Basic Laws from regular laws to constitutional norms. This paper argues that the only document in the history of Israel possessing the potential to fulfill an integrative role was the Declaration of Independence. Due to its intrinsic ‘transitional’ characteristics and the unique socio-political circumstances surrounding its drafting, this founding document could and should have been perceived as a transitional constitution. This transitional constitution established Israel’s basic values and opened the way for an incremental constitutional process that continued with the enactment of the Basic Laws, and that will culminate only with the drafting of a full constitution. However, owing in part to the narrow conception of transitional justice, the Declaration was never interpreted as such. This historical error could have been corrected in 1994 as the identical principle clause of Israel’s two Human Rights Basic Laws—which constitute Israel’s (partial) Bill of Rights—declared that the human rights regime in Israel should be “respected in the spirit of the Declaration of Independence”. Yet, this opportunity was once again not seized. This failure carries unfortunate consequences for the Israeli constitutional regime since unlike the Basic Laws, which enjoy formal normative supremacy yet nonetheless suffer from legitimacy deficiencies, the Declaration bears the potential to fulfill an integrative constitutional function.

scholarly journals Hak Asasi Manusia Dalam Kerangka Negara Hukum: Catatan Perjuangan di Mahkamah Konstitusi

2016 ◽  
Vol 4 (1) ◽  
Author(s):  
Andi Muhammad Asrun
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Constitutional State ◽  
Setting Mechanism ◽  
The One ◽  
Individual Human

Abstract: Human rights on the one hand by the concept of natural law is an inherent right of every individual human being since birth, but on the other hand the legality of human rights must be shaped by the flow of positivism. The debate over whether human rights should be stipulated in the constitution also influence the discussion of the UUD 1945. Finally, the UUD 1945 amendments regulate the basic rights of citizens more fully starts from the premise that human rights protection is an important element in the concept of a constitutional state. Incorporated therein also setting mechanism of "judicial review" in the Constitutional Court as a means to avoid any legislation contrary to the fundamental rights of citizens as guaranteed in the constitution. Abstrak: Hak Asasi Manusia Dalam Kerangka Negara Hukum: Catatan Perjuangan di Mahkamah Konstitusi. Hak asasi manusia pada satu sisi menurut konsep hukum alam adalah suatu hak yang melekat pada setiap individu manusia sejak dilahirkan, tetapi pada sisi lain hak asasi harus bentuk legalitas menurut aliran positivisme. Perdebatan apakah hak asasi manusia harus diatur dalam konstitusi atau tidak perlu dimuat dalam konstitusi juga mewarnai pembahasan UUD 1945. Amandemen UUD 1945 pasca berakhirnya 32 tahun Pemerintahan Orde Baru di bawah Suharto membawa perubahan significant UUD 1945. Pasca amandemen UUD 1945, konstitusi mengatur secara umum hak warganegara secara lebih lengkap. Perlindungan hak asasi manusia merupakan satu elemen penting dalam konsep negara hukum. Pasca amandemen konstitusi, UUD 1945 mengatur hak-hak dasar warganegara yang lebih lengkap bertitik tolak dari pemikiran bahwa perlindungan hak asasi manusia merupakan satu elemen penting dalam konsep negara hukum. UUD 1945 pasca amandemen memasukkan pengaturan hak warga negara lebih rinci serta mekanisme “judicial review” di Mahkamah Konstitusi sebagai sarana untuk menghindari adanya peraturan yang bertentangan dengan hak-hak dasar warganegara sebagaimana dijamin dalam konstitusi. DOI: 10.15408/jch.v4i1.3200

Proportionality Balancing and Constitutional Governance

2019 ◽  
Author(s):  
Alec Stone Sweet ◽  
Jud Mathews
Keyword(s):  
Human Rights ◽  
Rights Protection ◽  
Law And Politics ◽  
Constitutional State ◽  
International Court ◽  
Wide Range ◽  
Constitutional Justice ◽  
Proportionality Test ◽  
Basic Features

This book focuses on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when they fail the proportionality test. The result has been a massive—and global—transformation of law and politics. The book explicates the concepts of “trusteeship,” the “system of constitutional justice,” the “effectiveness” of rights adjudication, and the “zone of proportionality.” A wide range of case studies analyze: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing “constitutional dialogues” with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the heart of governance in the modern constitutional state and beyond.

The Interests Protected by the Right to Security of Person

2019 ◽  
pp. 103-122
Author(s):  
Rhonda Powell
Keyword(s):  
Human Rights ◽  
South African ◽  
Capabilities Approach ◽  
European Convention ◽  
Political Rights ◽  
Bill Of Rights ◽  
Human Rights Law ◽  
Economic Rights ◽  
Canadian Charter ◽  
The Right

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

15. The European Convention on Human Rights and the Human Rights Act 1998

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Liberties ◽  
European Convention ◽  
Bill Of Rights ◽  
Rights Protection ◽  
Positive Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts' historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

scholarly journals Constitutional Change: Towards Better Human Rights Protection in Australia

2019 ◽  
Vol 5 (2) ◽  
pp. 248
Author(s):  
Mohammad Ibrahim
Keyword(s):  
Human Rights ◽  
Primary Sources ◽  
Constitutional Change ◽  
Bill Of Rights ◽  
Legal Scholar ◽  
State Laws ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Protection Of Human Rights ◽  
Constitutional System

Many legal scholars contend that Australia does not have a charter of rights in its Constitution. The legal scholar Rosalind Dixon, however, suggests that the Constitution does include some provisions that could be viewed as resembling a (partial) bill of rights. This constitutional framework might cause one to ponder whether human rights are adequately protected in the Australian constitutional system. This paper attempts to consider this question. It is argued that the protection of human rights under the Constitution, federal and state laws is not fully capable of responding to at least three human rights crises presented. Accordingly, the paper suggests that Australia should consider the idea of amending the Constitution in order to better human rights protection in the country. It offers suggestion that the Canadian model protection of human rights could be considered as one of the primary sources for reforms in the future.

The asean Human Rights Declaration

2014 ◽  
Vol 3 (2) ◽  
pp. 183-208 ◽  
Author(s):  
Gino J. Naldi ◽  
Konstantinos D. Magliveras
Keyword(s):  
Human Rights ◽  
Present Article ◽  
The Other ◽  
Comparative Approach ◽  
Bill Of Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Three Generations ◽  
Regional Systems ◽  
Salient Features

The adoption of the asean Human Rights Declaration in November 2012 marks the latest addition in the armoury of regional human rights protection. Even though it does not create a treaty based regime, it does incorporate all three ‘generations’ of human rights. The purpose of the present article is to examine the salient features of the Declaration not only by taking a comparative approach vis-à-vis the other regional systems but also by referring to the International Bill of Rights. The article also covers the asean Intergovernmental Commission on Human Rights inaugurated in October 2009 and suggests ways to augment the Declaration’s effectiveness through the work of the Commission.

15. The European Convention on Human Rights and the Human Rights Act 1998

Public Law ◽  
2020 ◽  
pp. 620-670
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Liberties ◽  
European Convention ◽  
Bill Of Rights ◽  
Rights Protection ◽  
Positive Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts’ historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

scholarly journals KEABSAHAN ALAT BUKTI ELEKTRONIK PASCA PUTUSAN MAHKAMAH KONSTITUSI NO.20/PUU-XVI/2016 DALAM PRESPEKTIF CRIMINAL JUSTICE SYSTEM

2017 ◽  
Vol 5 (4) ◽  
pp. 677
Author(s):  
Erma Lisnawati
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Justice System ◽  
The State ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
Electronic Evidence ◽  
Rights Protection ◽  
Electronic Transactions ◽  
Article 5

Indonesia is a state of law that upholds of human rights. In the state of law, there is a human rights protection by the state including the privacy of rights. It is referred judicial review of Act No. 11 of 2008 on Information and Electronic Transactions, of Article 5 Paragraph (2). To protect the privacy of recording and wiretapping conducted illegally. The Constitutional Court has been issued a ruling of the Constitutional Court No.20/PUU-XVI/2016 which imposes limits on how electronic evidence retrieval and also who is allowed to submit as an evidence in court. The court ruling was appropriate given the absence of norms regulating the procedures for the acquisition and delivery of electronic evidence. In a special lex such as criminal acts Corruption, Money Laundering and Terrorism Crime and Crime and Electronic Information only governs the kinds of electronic evidence alone, as well as the Code of Criminal Law.Indonesia adalah Negara hukum yang menjunjung tinggi hak asasi manusia. dalam Negara hukum, ada perlindungan hak asasi manusia oleh Negara, termasuk hak pribadi. Undang-undang Nomor 11 tahun 2008 tentang Informasi dan Transaksi Elektrokni, Pasal 5 Ayat (2) telah diajukan judisial review pada Mahkamah Konstitusi. Mahkamah Konstitusi telah mengeluarkan putusan Mahkamah Konstitusi Nomor 20/PUU-XVI/2016, yang memberikan batasan tentang cara pengambilan alat bukti elektronik yang diperkenankan untuk diajukan dalam proses persidangan. Hal ini, sudah tepat mengingat tidak adanya norma yang mengatur tentang cara perolehan alat bukti elektronik dan siapa yang berhak mengajukan alat bukti elektronik tersebut ke pengadilan. Dalam beberapa undang-undang khusus pedoman tentang alat bukti elektronik hanya mengatur mengenai tindak pidana khusus saja seperti pada Tindak Pidana Korupsi, Tindak Pidana Pencucian Uang, Tindak Pidana Terorisme dan Tindak Pidana Informasi dan Transaksi Elektronik.

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