scholarly journals Introduction to special issue: separation of powers, the judiciary and the politics of constitutional adjudication

2021 ◽  
pp. 1-6
Author(s):  
Sanele Sibanda
Keyword(s):  
Separation Of Powers ◽  
Special Issue ◽  
Constitutional Adjudication

Courts in Transition

2020 ◽  
pp. 123-154
Author(s):  
Yvonne Tew
Keyword(s):  
Political Power ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Emerging Democracies ◽  
Developing Democracies ◽  
Dominant Party ◽  
The Face ◽  
Constitutional Adjudication ◽  
Constitutional Jurisprudence ◽  
Judicial Role

This chapter makes the case for an empowered judicial role in the constitutional governance of emerging democracies in Asia. Courts play a significant role in checking political power in dominant party states and building foundational principles of constitutionalism for aspiring democracies. In the face of concentrated political power, the judiciary can strengthen its institutional role through strategic assertiveness, as the Malaysian apex court has exhibited in two recent landmark decisions: Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat (2017) and Indira Gandhi v. Pengarah Jabatan Agama Islam (2018). How can courts develop the constitutional jurisprudence necessary to support a more empowered judicial role? The chapter argues that the constitution’s foundational elements—the constitution’s original framework, the separation of powers, and the rule of law—provide a core basis for courts to safeguard and draw on to structure constitutional adjudication. It explores the specific legal mechanisms that courts can invoke in practice: a constitutional basic structure doctrine, purposive interpretation, and proportionality analysis in constitutional adjudication. Taken together, these judicial interventions can equip courts in developing democracies to defend the constitution’s core structure and to construct principles of constitutionalism.

scholarly journals Editorial

2017 ◽  
Vol 12 (3) ◽  
pp. 1
Author(s):  
Francois Venter
Keyword(s):  
Separation Of Powers ◽  
Memorial Lecture ◽  
Judicial Activism ◽  
Bill Of Rights ◽  
Societal Values ◽  
Constitutional Adjudication

We are pleased to publish here, as an oratio, the Ebsworth Memorial Lecture delivered by Mr Justice Louis Harms in February 2007.  In his lecture he addressed a range of contentious issues regarding the challenges of judging under a (new) Bill of Rights and he inter alia raises, "without answering, the question of whether a bill of rights should reflect existing societal values or whether it should create them."  He also spoke candidly of judicial activism, verbosity emanating from the bench, the judiciary and the separation of powers and (in-)consistency in constitutional adjudication.  Among his conclusions he states that a Bill of Rights "is supposed to remove arbitrariness, not only of legislation but also of adjudication."

scholarly journals Judging Under a Bill of Rights

2017 ◽  
Vol 12 (3) ◽  
pp. 1
Author(s):  
Louis TC Harms
Keyword(s):  
Separation Of Powers ◽  
Memorial Lecture ◽  
Judicial Activism ◽  
Bill Of Rights ◽  
Societal Values ◽  
Constitutional Adjudication

  We are pleased to publish here, as an oratio, the Ebsworth Memorial Lecture delivered by Mr Justice Louis Harms in February 2007.  In his lecture he addressed a range of contentious issues regarding the challenges of judging under a (new) Bill of Rights and he inter alia raises, "without answering, the question of whether a bill of rights should reflect existing societal values or whether it should create them."  He also spoke candidly of judicial activism, verbosity emanating from the bench, the judiciary and the separation of powers and (in-)consistency in constitutional adjudication.  Among his conclusions he states that a Bill of Rights "is supposed to remove arbitrariness, not only of legislation but also of adjudication." 

scholarly journals An Opportunity for Reflection – A Special Issue on “The Constitution of Canada: History, Evolution, Influence and Reform”

2017 ◽  
Vol 9 (3) ◽  
pp. Ed-I-Ed-VII
Author(s):  
Giuseppe Martinico ◽  
Richard Albert ◽  
Antonia Baraggia ◽  
Cristina Fasone
Keyword(s):  
Liberal Democracy ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
International Association ◽  
Modern World ◽  
Considerable Influence ◽  
Foreseeable Future ◽  
Special Issue ◽  
Legal Studies ◽  
The World

Abstract Canada is and will for the foreseeable future be a peaceful and prosperous liberal democracy whose Constitution Act, 1867, now 150 years old as of 2017, has become a model for the modern world. The Constitution of Canada has exerted considerable influence on other countries, particularly since the coming into force of its Constitution Act, 1982, which included the celebrated Canadian Charter of Rights and Freedoms. Just as Canada drew from foreign and international experiences in drafting its Charter, the world has learned a great deal from Canada, not only as to rights protections but also as to the separation of powers, the judicial function, and the structure of government. In light of these impressive achievements, an international symposium on the Canadian Constitution was held in Pisa at the Scuola Sant’Anna under the auspices of the Sant’Anna Legal Studies project and with the support of the DIRPOLIS (Law, Politics and Development) Institute at the Scuola Sant’Anna, the Canadian Embassy in Italy, and the International Association of Constitutional Law. This special issue collects some of the papers presented on that occasion.

scholarly journals Constitutional adjudication in the system of separation of powers. American impacts in Hungary

Iuris Dictio ◽  
2017 ◽  
Author(s):  
Lóránt Csink
Keyword(s):  
Separation Of Powers ◽  
Functional Approach ◽  
Judicial System ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
American Model ◽  
The World ◽  
Constitutional Adjudication ◽  
Great Step

Throughout the world one can find two basic models of constitutional adjudication: the American and the Kelsenian ones. At first sight one could easily differentiate them with the mere fact that in the American model there is no separate constitutional court; constitutional adjudication is incorporated into the judicial system. The essay argues that the differentiation is more complicated. The base of distinction is not the existence of a constitutional court. The essay chooses a functional approach and analyses if the activity of constitutional adjudication is closer to the judicial branch or it is “negative legislation” as Kelsen originally thought. Such an approach requires the analysis of separation of powers and the competences of constitutional courts; especially the abstract law review and individual complaint. Hungary’s new constitution changed the role of the constitutional court. The essay concludes that due to the changes the Hungarian system of constitution adjudication made a great step towards the American model from the Kelsenian one.

Administration of Justice: Judicial Delays in India

2019 ◽  
Vol 65 (4) ◽  
pp. 885-896
Author(s):  
Tanushree Singh ◽  
Akash Singh Thakur
Keyword(s):  
Separation Of Powers ◽  
Fundamental Rights ◽  
Federal State ◽  
District Courts ◽  
Division Of Powers ◽  
Administration Of Justice ◽  
Physical Infrastructure ◽  
Judicial Administration ◽  
Set Up ◽  
Constitutional Adjudication

In unique as well as comparative terms, the Indian judiciary—an integrated federal hierarchy with federal, state and district courts set up under the Constitution—fares better than the legislative and executive branches of the governments in India as well as those in other countries, especially in the Global South, in terms of impartiality, efficiency and independence. This article seeks to take a closer analytical look at an aspect of judicial administration, which is often glossed over in the existing literature in highlighting the issues of autonomy and constitutional adjudication and constitutional law on fundamental rights of citizens, federal division of powers, separation of powers, judicial review and the like. In this article we focus on the perennial and notorious judicial delays, their causes and remedial reforms. Delays in speedy disposal of cases occur mainly due to a large number of vacancies that remain unfilled partly due to fiscal reasons, administrative inaction and tension between the executive and the superior courts, lack of adequate operational budgetary allocations and physical infrastructure and frequent postponement of hearings until next dates set for reasons not always genuine. We have suggested reforms in the administration of the courts as well as alternate forums like Lok Adalats, e-judicial governance, ethical discourse in the Bar and the Bench as well as the civil society.

Sign in / Sign up

Export Citation Format

Share Document