Introduction Building Constitutionalism in Fragile Democracies

2020 ◽  
pp. 1-18
Author(s):  
Yvonne Tew
Keyword(s):  
Judicial Review ◽  
State Building ◽  
Democratic Governance ◽  
Constitutional Democracy ◽  
Democratic Transitions ◽  
Constitutional Order ◽  
Institutional Power ◽  
Constitutional State ◽  
Facilitative Role

What role do courts play in developing constitutional democracy in Asia? Constitutional Statecraft in Asian Courts explores the role of judicial review and constitutionalism in safeguarding democratic governance and facilitating constitutional governance. It offers an in-depth look at contemporary Malaysia and Singapore, helping us understand how courts engage in constitutional state-building even as they confront dominant political parties and negotiate democratic transitions. The book considers how the judiciary can negotiate institutional power to consolidate its position vis-à-vis the dominant political branches of government. It also examines the facilitative role courts can play in crafting the foundational principles of an evolving constitutional order. The judicial strategies evident in Malaysia and Singapore suit the challenges of many other emerging Asian democracies, providing both guidance and caution as these states negotiate their emerging constitutionalism. At the heart of this book is an account of how judicial strategies of constitutionalism can sculpt the contours of state-building. It is, in brief, about how courts engage in constitutional statecraft.

A Democratic Defense of Constitutional Balancing

2010 ◽  
Vol 4 (1) ◽  
pp. 79-106 ◽  
Author(s):  
Stephen Gardbaum
Keyword(s):  
Judicial Review ◽  
General Structure ◽  
Prima Facie ◽  
Constitutional Rights ◽  
Constitutional Democracy ◽  
First Order ◽  
Constitutional Right ◽  
Normative Justification ◽  
Inherent Part

We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives.It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing and comparing first-order practices of balancing; (2) providing second-order conceptual analyses; (3) explaining balancing's rise to dominance; (4) advancing critiques of balancing; and (5) rebutting these critiques.In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review.

The Canadian Charter's Override Clause: Lessons for Israel

2016 ◽  
Vol 49 (1) ◽  
pp. 67-102 ◽  
Author(s):  
Lorraine E Weinrib
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Detailed Account ◽  
Political Leaders ◽  
Public Power ◽  
Canadian Charter ◽  
Political Dynamics ◽  
Constitutional State

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.

Constitutional Statecraft in Asian Courts

2020 ◽  
Author(s):  
Yvonne Tew
Keyword(s):  
Political Parties ◽  
State Building ◽  
Democratic Transitions ◽  
Authoritarian Rule ◽  
Emerging Democracies ◽  
Constitutional State ◽  
Colonial Legacies

Constitutional Statecraft in Asian Courts explores how courts engage in constitutional state-building in aspiring yet deeply fragile democracies in Asia. Yvonne Tew offers an in-depth look at contemporary Malaysia and Singapore, explaining how courts protect and construct constitutionalism even as they confront dominant political parties and negotiate democratic transitions. This richly illustrative account offers at once an engaging analysis of Southeast Asia’s constitutional context, as well as a broader narrative that should resonate in many countries across Asia that are also grappling with similar challenges of colonial legacies, histories of authoritarian rule, and societies polarized by race, religion, and identity. The book explores the judicial strategies for statecraft in Asian courts, including an analysis of the specific mechanisms that courts can use to entrench constitutional basic structures and to protect rights in a manner that is purposive and proportionate. Tew’s account shows how courts in Asia’s emerging democracies can chart a path forward to help safeguard a nation’s constitutional core and to build an enduring constitutional framework.

Popular sovereignty and constitutional democracy

2021 ◽  
pp. e20210048
Author(s):  
Philip Pettit
Keyword(s):  
Political Authority ◽  
Popular Sovereignty ◽  
Constitutional Democracy ◽  
Single Body ◽  
The People ◽  
Constitutional State

In recent times, the idea of popular sovereignty has figured prominently in the rhetoric of neo-populist thinkers and activists who argue that legal and political authority must be concentrated in one single body or individual elected by the people to act in its name. The thesis of this article is that, while the notion of popular sovereignty may seem to offer some support to the neo-populist image of democracy, it serves more persuasively to support the idea of a polycentric, constitutional democracy. The constitutional state can be polycentric and yet feature a sovereign. And if this constitutional state is democratic in the sense of distributing power relatively equally amongst individual citizens, thus empowering the people-several, then it will establish the people-corporate in the role of sovereign..

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 Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

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