Japan

2021 ◽  
pp. 115-132
Author(s):  
Steven Gow Calabresi
Keyword(s):  
World War Ii ◽  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The Political ◽  
Bill Of Rights ◽  
Checks And Balances ◽  
Rubber Stamp ◽  
The Supreme Court ◽  
The Government

This chapter looks at the Japanese experience with judicial review. The Supreme Court of Japan does not enforce those parts of the Japanese Constitution, like Article 9, which prohibits war making; Article 21, which protects freedom of speech; or Article 89, which forbids taxpayer money from being used to hire Shinto priests. The Supreme Court of Japan thus refuses to enforce important articles in the Constitution of Japan. It does rubber stamp and thus legitimize actions taken by the political branches of the government. Why has judicial review of the constitutionality of legislation failed to take root in Japan? Japan does not need either a federal or a separation of powers umpire, since Japan is, firstly, a unitary nation-state with no need for a federalism umpire; and, secondly, a parliamentary democracy with a weak upper house of the legislature. Moreover, Japan has never atoned for the wrongs it committed during World War II nor has it truly admitted to even having done the horrible things that Japan did. A nation cannot get rights from wrongs judicial review and a Bill of Rights unless it admits it has done something wrong. Finally, the Japanese Constitution contains an inadequate system of checks and balances. As a result, the Supreme Court of Japan may not have the political space within which it can assert power.

scholarly journals SUPREME COURT’S JUDICIAL REVIEW AUTHORITY VS. CONSTITUTIONAL SUPREMACY IN THE MALDIVES: DOES THE CONSTITUTION STILL REIGN SUPREME?

2019 ◽  
Vol 27 (2) ◽  
pp. 469-499
Author(s):  
Aminath Asfa Shafie ◽  
Shamrahayu Abdul Aziz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Checks And Balances ◽  
Effective Functioning ◽  
The Supreme Court

The Supreme Court of Maldives is entrusted with the responsibility of upholding the supremacy of the Constitution. However, within the last ten years, the Supreme Court has been criticized for the Court’s slow but steady progression to encroach on the powers of the parliament and as a result, undermine the supremacy of the Constitution. The objective and purpose of this article are to entail how the Supreme Court of Maldives had utilized its power to judicial review to undermine the supremacy of the Constitution over the years. This article uses library-based research. It analyses the principles of separation of powers, checks and balances and judicial review and how these principles are adopted in the Maldives. In addition, this article reviews and analyzes the decisions of the Supreme Court which are in contradiction to the Constitution. The findings of the article are evidential of how the Supreme Court had performed the constitutionally mandated legislative functions of the parliament through the Court’s power to judicial review. The Supreme Court had established guidelines, regulated the rights and freedoms specified in the Constitution, and determined procedures.  This article concludes by emphasizing the importance of exercising restraint when performing the constitutionally mandated functions of each branch, in order to ensure the supremacy of the Constitution as well the effective functioning of the three branches of government.

Indonesia

2021 ◽  
pp. 251-266
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Checks And Balances ◽  
American Perspective ◽  
The People ◽  
The Supreme Court

This chapter highlights the origins and growth of Indonesian judicial review. Indonesia today is a constitutional democracy that has attained surprising success in eliminating hyper-presidentialism by implementing important checks and balances on presidential power; by separating executive, legislative, and judicial power; and by attaining rapidly an astonishing amount of decentralization since 1998. That degree of checks and balances and of decentralization has undoubtedly made Indonesians much freer than they were under President Suharto’s dictatorship. The Indonesian Constitutional Court seems to function well and enjoys the confidence of the people. Looked at from an American perspective, however, Indonesia is a constitutional democracy, which does not yet fully protect freedom of expression, freedom of religion, or economic freedoms to the extent that those freedoms are protected by the U.S. Supreme Court. Indonesia’s Bill of Rights and its system of judicial review originated for rights from wrongs reasons, because of borrowing, and because power is sufficiently divided in Indonesia, as a result of the separation of powers and federalism, so that there is political space in which the Supreme Court can operate.

scholarly journals Judicial Review And Judicial Supremacy: A Paradigm of Constitutionalism in Nigeria

2011 ◽  
Vol 11 (1) ◽  
pp. 45-75
Author(s):  
Ajepe Taiwo Shehu
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The United States ◽  
Judicial Power ◽  
The Political ◽  
Natural Consequence ◽  
The People ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
The Government

Abstract This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. Th is is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to examine the controversy within the context of Nigeria’s experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confirmation by the Senate, or is it in the legislature? The paper argues that the overriding effect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the “People Themselves.”

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.

scholarly journals The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary

1993 ◽  
Vol 7 (1) ◽  
pp. 35-73 ◽  
Author(s):  
Mark A. Graber
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Empirical Work ◽  
Political Elite ◽  
The Political ◽  
Elected Officials ◽  
Social Policies ◽  
The Supreme Court ◽  
National Coalition ◽  
Judicial Policymaking

Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. Both usually begin from the premise that judicial review is “a deviant institution in a democratic society.” Much normative work claims that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies. In a frequently cited passage, Alexander Bickel asserts that the Supreme Court is “a counter-majoritarian force” in our system of government. Much empirical work, by comparison, insists that independent judicial policymaking seldom takes place in a democracy because, with few exceptions, judges appointed and confirmed by elected officials sustain whatever social policies are enacted by the dominant national coalition. Robert Dahl observes that it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”

Más allá del quehacer jurisdiccional de la Suprema Corte de Justicia de la Nación

2020 ◽  
pp. 45-53
Author(s):  
Quetziquel Flores Villicaña
Keyword(s):  
Supreme Court ◽  
Constitutional Amendment ◽  
Checks And Balances ◽  
The Supreme Court ◽  
The Government ◽  
Investigation Powers

Article 49 of the Mexican Constitution establishes the tripartite division of the government where by each of the three divisions has certain enumerated powers that serve as checks and balances in a democracy. In the present work we will not analyze the jurisdictional powers of the Judiciary, but instead the legislative powers of the Supreme Court, as well as certain investigation powers whitin as well as how it worked and in which important cases such powers were exercised, as well as the constitutional amendment of June 10, 2011. Another power that we will analyze of the Supreme Court is the power to issue general agreements. Most notably, we will analyze the general agreements 10/2000 and 5/2001 for their impact on functions of the Supreme Court.

Canada: From Privy Council to Supreme Court

2021 ◽  
pp. 183-228
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Direct Result ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Canadian History ◽  
British North America ◽  
Court Of Appeals ◽  
The Supreme Court

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.

A Plague on Both Your Houses

2018 ◽  
pp. 56-70
Author(s):  
Pratap Bhanu Mehta
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
The Political ◽  
Judicial Appointments ◽  
Political Events ◽  
The Supreme Court ◽  
The Government

This essay proceeds with the view that the process of judicial appointments is as much political as it is legal, even though the arguments before the Supreme Court in the NJAC Case constantly treated it as a matter of only constitutional law. This essay argues that it is critical to be cognizant of the political events involving successive governments and Chief Justices wresting the power to appoint judges. It asks why and how the process of deciding upon an acceptable procedure for judicial appointments has become the source of an ongoing confrontation between the executive and the judiciary. It is argued in this essay that while the government and the judiciary might individually be justified in their stance, as a result of this conflict, public credibility of both these institutions has been adversely affected.

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