The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review

2021 ◽  
pp. 152-175
Author(s):  
Rosalind Dixon ◽  
David Landau
Keyword(s):  
Judicial Review ◽  
Political Institutions ◽  
Prime Minister ◽  
Weak Form ◽  
Criminal Prosecution ◽  
Constitutional Interpretation

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.

scholarly journals The Attorney General, Politics, and the Public Interest. Contributions to an Evolving Constitutional Convention

2022 ◽  
pp. 1-20
Author(s):  
Michael Murphy
Keyword(s):  
Quality Control ◽  
Public Interest ◽  
Prime Minister ◽  
Attorney General ◽  
Criminal Prosecution ◽  
Prosecutorial Discretion ◽  
Constitutional Convention ◽  
The Public ◽  
Normative Framework

Abstract The prosecutorial independence of the Attorney General (AG) is a firmly established constitutional convention in Canada, but it is also an evolving convention, subject to ongoing contestation and debate. This article is a contribution to that debate. It defends a normative constitutional framework wherein the AG’s authority to make final decisions in matters of criminal prosecution is balanced against a corresponding duty to consult with cabinet and the prime minister on the public interest implications of prosecutorial decisions when the circumstances warrant. Within this normative framework, respectful contestation and debate amongst ministers, the prime minister, and the AG in determining the public interest merits of prosecution is welcomed, even encouraged, and if conducted with the requisite integrity, objectivity, and transparency, it is regarded not as a threat but as a valuable check and balance on AG independence and an indispensable form of quality control on the exercise of prosecutorial discretion.

Does Membership Matter?

2014 ◽  
Author(s):  
David P. Auerswald ◽  
Stephen M. Saideman
Keyword(s):  
New Zealand ◽  
Great Britain ◽  
Political Institutions ◽  
Domestic Politics ◽  
Prime Minister ◽  
The Military

This chapter looks at two countries, Australia and New Zealand, that are partners with but not members of NATO. Australia and New Zealand have British-style political institutions, with the key decisions made by the prime minister and his or her minister of defense. The chapter then assesses whether membership in NATO makes a difference. It argues that non-membership can actually be a shield that countries use to deflect harder choices and more responsibilities. Otherwise, the domestic dynamics work like they do in Great Britain or Canada, demonstrating that the military constraints imposed by nations are driven far more by domestic politics than by NATO institutions.

Non-Finality and Dialogue in Constitutional Interpretation

2018 ◽  
pp. 1-50
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Civil Society ◽  
Judicial Review ◽  
Political Thought ◽  
Public Deliberation ◽  
Constitutional Theory ◽  
Democratic Deficit ◽  
Constitutional Interpretation ◽  
Emergent Literature ◽  
Democratic Experimentalism ◽  
Private Actors

By looking both at the European and contemporary US constitutional theory debates, this chapter proposes an analytic taxonomy of contemporary non-court centric approaches to constitutional interpretation: those that have concluded that the most promising response to persistent concerns about a democratic deficit is to shift the focus from courts as a forum of principle to the dialogue between courts and other actors, ranging from (other) courts to legislatures, administrative agencies, private actors, civil society stakeholders, and the wider public, in the jurisgenerative process. The goal is, by following the emergent literature on ‘weak’, proceduralist, and democratic-experimentalist forms of judicial review, to argue the virtues of the latter. Democratic experimentalism denotes a modality of judicial review that allows judges to enforce avowedly open-ended, fundamental, constitutional commitments in a way that institutionalizes—rather than excludes—continuing, social, and democratic determination and the progressive clarification of what constitutional commitments can and should come to mean in practice. Judicial review may deepen democracy rather than limit it by providing a focus and reason for public deliberation. The hope is to provide, by setting out contrasting positions, a foil for discussion and to show that the desirability of judicial review is not merely complacent assumption in contemporary constitutional and political thought, but can be supported on democratic grounds as deliberation-enhancing.

The 1988 French Presidential Election

1988 ◽  
Vol 23 (3) ◽  
pp. 276-289 ◽  
Author(s):  
John Frears
Keyword(s):  
Political Institutions ◽  
Presidential Election ◽  
Prime Minister ◽  
Left Wing ◽  
Parliamentary Elections ◽  
Dominant Theme ◽  
The Stability ◽  
Presidential Legitimacy ◽  
Political Adversary ◽  
Ministerial Power

THE 1986 ELECTION WAS THE BEGINNING OF ‘COHABITATION’ and 1988 was the end of it — at least of the Fifth Republic's first experience of it. Cohabitation between the President and a Prime Minister who was his chief political adversary was to be the last great test of the stability and adaptability of the Fifth Republic's political institutions. It had been the dominant theme in 1986 just as the fearsome prospect of cohabitation between left-wing parliamentary majorities and previous presidents had been to the forefront in the parliamentary elections of 1978 and even 1973. It was as the President of cohabitation that FranGois Mitterrand won his extraordinary 1988 victory. The survival of presidential legitimacy against the onslaught of prime ministerial power is what the 1988 presidential election will be remembered for. This is the principal theme of this article.

Opposition boycott tactics are destabilising Albania

2017 ◽  
Keyword(s):  
Political Institutions ◽  
Democratic Party ◽  
Prime Minister ◽  
Socialist Party ◽  
Political Crisis ◽  
The Political ◽  
Content Type ◽  
Eu Integration

Significance The governing Socialist Party (PSSh) under Prime Minister Edi Rama is expected to win again. This implies policy continuity by what has hitherto been a successful reformist government. However, the decision by the opposition Democratic Party (PDSh) to boycott the elections creates significant uncertainty about the process and aftermath. Impacts PDSh’s boycott of parliament is blocking the completion of judicial reforms that require approval by a two-thirds majority of deputies. A PDSh boycott of elections would constitute a failure of political institutions and halt Albania’s progress towards EU integration. Disenfranchising a large constituency would escalate the political crisis and could lead PDSh supporters to resort to violence.

The Courts

2007 ◽  
Vol 40 (1) ◽  
pp. 249-250
Author(s):  
Ran Hirschl
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Judicial Review ◽  
Political Institutions ◽  
Supreme Court Of Canada ◽  
Court System ◽  
University Of British Columbia ◽  
The Supreme Court

The Courts, Ian Greene, The Canadian Democratic Audit Series; Vancouver: University of British Columbia Press, 2006, pp. xvii, 182.This book is another welcome addition to the Canadian Democratic Audit Series. It sets out to assess the democratic credentials of Canada's judiciary—a most significant branch of government in post-1982 Canada. The book's approach is refreshing in several respects. Instead of the traditional focus on the well-rehearsed debate over the questionable democratic credentials of judicial review, the book attempts to evaluate the adequacy of the Canadian court system in relation to three basic tenets of democracy: participation, inclusiveness, and responsiveness. Unlike most accounts of Canadian political institutions, it pays due attention to elements of the court system beyond the Supreme Court of Canada. In so doing, Greene is able to assess more accurately whether the Canadian judiciary as a whole is living up to that set of reasonable democratic expectations.

scholarly journals O Papel da Interpretação Constitucional na Jurisdição Constitucional Brasileira e no Judicial Review Norte-Americano: um Estudo Comparado

2012 ◽  
Vol 7 (1) ◽  
Author(s):  
Isabella Karla Lima dos Santos
Keyword(s):  
Judicial Review ◽  
Conceptual Analysis ◽  
Control Model ◽  
Fundamental Rights ◽  
Constitutional Interpretation ◽  
Constitutional Courts ◽  
Democratic State ◽  
The Will ◽  
Key Aspects

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.

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