The Canadian Charter's Override Clause: Lessons for Israel

2016 ◽  
Vol 49 (1) ◽  
pp. 67-102 ◽  
Author(s):  
Lorraine E Weinrib

This article considers the role of legislative override clauses in the Canadian and Israeli rights-protecting systems, which share many institutional features. After providing a detailed account of the adoption of the override clause in the Canadian Charter of Rights and Freedoms, as a compromise between legislative supremacy and final judicial review, the article analyses the distinctive and unexpected political dynamics generated by this compromise, including its effect on the exercise of public power and elections. Although adopted to appease political leaders who opposed the Charter on substantive and institutional grounds, the legislative override has to date worked to legitimate judicial review and bring Canada further into the model of the modern constitutional state. The article then considers the lessons that Israel might learn from this analysis in the light of proposals to adopt an override clause to apply to a wider range of fundamental rights and to operate against Supreme Court judgments.

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison

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.


2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.


1983 ◽  
Vol 16 (1) ◽  
pp. 115-134 ◽  
Author(s):  
Jennifer Smith

abstractThe origins of judicial review in this country have been the subject of debate among legal scholars. This article examines the conflicting accounts provided by W. R. Lederman and B. L. Strayer, and attempts to assess them in the light of the Confederation debate, 1864–1867, and the debate surrounding passage of the Supreme Court Act in 1875. It arrives at these considerations: that the intentions of the founders are of greater significance than has hitherto been suggested; that both the founders themselves and the legislators in 1875 held conflicting expectations on the role of the Supreme Court in constitutional matters; and that this conflict has left its mark on the court. The article concludes that reflection on the origins of judicial review ought to temper the enthusiasm with which many Canadians have greeted the advent of the Charter of Rights and Freedoms.


2018 ◽  
Vol 25 (2) ◽  
pp. 247
Author(s):  
Sholahuddin Al-Fatih

Post-reform of the role of judicial institution is run by two institutions namely the Supreme Court and the Constitutional Court. The duties and authorities of the two institutions are regulated in the Constitution of the Republic of Indonesia 1945 and the act that addresses the three institutions more specifically. Several powers possessed by the Supreme Court and the Constitutional Court, one of them is the authority to judicial review. The Constitutional Court is authorized to review the act on the Constitution of the Republic of Indonesia 1945, while the Supreme Court is authorized to review under the Act on the above legislation.The unfairness of the regulatory testing function is feared to trigger bureaucratic inefficiency. Based on data released by the Supreme Court Clerk, it was recorded during 2016 that the Supreme Court received 18,514 cases, including the Hak Uji Materi (HUM) subject to legislation under the Act. While the number of cases of judicial review of the Constitutional Court in 2016-2017 amounted to only 332 cases. Therefore, it is necessary to conduct a bureaucratic reform and provide new ideas related to the model of one court of judicial review in Indonesia. So that in this paper will be discussed deeply about problematic of judicial review in Indonesia and the authority of the Constitutional Court to review the act under one roof with SIJURI mechanism.


Percurso ◽  
2019 ◽  
Vol 2 (29) ◽  
pp. 377
Author(s):  
Sirlene Elias RIBEIRO

RESUMOO presente artigo cuida de uma análise da atuação dos poderes Legislativo Executivo e Judiciário na realização e implementação dos direitos fundamentais previstos na Constituição Federal do Brasil. O Enfoque dado ao trabalho é a análise de considerações e definições doutrinárias acerca do tema proposto, bem como de julgados do Supremo Tribunal Federal, com o objetivo de uma conclusão acerca do crescimento do ativismo judicial e da judicialização das políticas públicas voltadas aos direitos humanos, passando por uma análise da elaboração de legislação simbolicamente e de uma atuação simbólica do Tribunal nas questões de direitos fundamentais. PALAVRAS-CHAVES: Ativismo; Judicialização; Divisão de Poderes; Legislação Simbólica. ABSTRACTThis article analyzes the performance of the Executive and Judiciary Legislative powers in the realization and implementation of fundamental rights foreseen in the Federal Constitution of Brazil. The focus of the work is the analysis of doctrinal considerations and definitions about the proposed theme, as well as of the Brasilian Federal Supreme Court, with the objective of a conclusion about the growth of judicial activism and the judicialization of public policies focused on human rights, through the analysis of the symbolic drafting of legislation and a symbolic role of the Court in matters of fundamental rights. KEYWORDS: Activism; Judicialization; Division of powers; Symbolic Legislation.


Author(s):  
Isabella Karla Lima dos Santos

Resumo: Este trabalho busca analisar o instituto da Interpretação Constitucional no direito americano e brasileiro, de maneira comparada. Nosso objetivo é demonstrar as semelhanças e diferenças entre os dois países, no que diz respeito ao âmbito de incidência da interpretação constitucional e ao espaço de liberdade conferido ao intérprete judicial, bem como demonstrar a influência do modelo de controle de constitucionalidade norte-americano (difuso) sobre o brasileiro (misto). Para tanto, iremos fazer uma breve análise conceitual sobre aspectos fundamentais ao entendimento do tema deste trabalho e, em seguida, estudaremos os modelos de controle de constitucionalidade dos dois países de modo comparado, com ênfase no papel do intérprete constitucional e o seu âmbito de atuação dentro de cada modelo. Buscamos demonstrar que o fundamental não é o modo como se interpreta a Constituição, mas o resultado obtido, que deve ser sempre a efetivação dos direitos fundamentais. Tanto o Judiciário americano quanto o brasileiro recebem críticas quanto ao caráter contramajoritário de suas decisões, contudo, deixamos claro que um Estado Democrático de Direito se faz não só através do respeito à vontade da maioria, mas também quando há a concretização dos direitos fundamentais dos cidadãos por meio das decisões das Cortes Constitucionais. Palavras-chave: Direito Comparado; Jurisdição Constitucional; Judicial Review of Legislation; Interpretação Constitucional; Direitos Fundamentais. Abstract: This paper seeks to analyse the Constitutional Interpretation Institute in American and Brazilian Law, comparative way. Our goal is to demonstrate the similarities and differences between the two countries, with regard to the scope of constitutional interpretation and impact to the area of freedom conferred upon the court interpreter, as well as demonstrate the influence of constitutionality control model (diffuse) on the Brazilian (mixed). To this end, we will do a brief conceptual analysis on key aspects to understanding of the topic of this work and then we will study the models of judicial review of the two countries so compared with emphasis on the role of constitutional interpreter and its scope of action within each model. We seek to demonstrate that the key is not how to interpret the Constitution, but the results obtained, which should always be the practice of fundamental rights. Both the American and Brazilian Courts receive criticism about the against majority character of their decisions, however, we are clear that a democratic State of law is made not only by respecting the will of the majority, but also when there is the realization of the fundamental rights of citizens by means of decisions of Constitutional Courts. Keywords: Comparative Law; Constitutional Jurisdiction; Judicial Review of Legislation; Constitutional Interpretation; Fundamental Rights.


2008 ◽  
Vol 9 (11) ◽  
pp. 1987-2012 ◽  
Author(s):  
Erika de Wet

The current contribution focuses on the oversight over international institutions, which is used as a synonym for the accountability of such entities. It departs from the principle that all entities exercising public authority have to account for the exercise thereof. The growing power of international institutions in areas that were formerly regulated domestically, along with the growing impact of their conduct on (the rights of) States and non-State actors alike, has thus far not been matched by a shift in accountability relationships beyond those applicable within the confines of the territorial State. Understandably therefore the calls for the accountability of international institutions have increased in recent years, as it is seen as essential for ensuring their credibility and for securing control over public power.


Politics ◽  
2018 ◽  
Author(s):  
Peter Ferdinand ◽  
Robert Garner ◽  
Stephanie Lawson

This chapter explores the interrelationships between law, constitutions, and federalism. It first explains the importance of constitutions in shaping the basic structure of the state and the fundamental rights of citizens that they establish before discussing the Universal Declaration of Human Rights, in particular asking whether it is Western-centric. It then considers the ways in which states may attempt to realize justice in applying the law, with emphasis on the distinction between Islamic and Western practice. It also examines the role of constitutional courts and judicial review, legal adjudication of political problems, how the institution of federalism is used to contain the powers of the state and to manage diverse societies, and consociationalism as an alternative approach to handling social diversity. Finally, it analyses the increasing legalization of political life.


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