Legislative Power Weakened

2020 ◽  
pp. 17-22
Author(s):  
Brian Pugh
Keyword(s):  
Separation Of Powers ◽  
Attorney General ◽  
Court Decision ◽  
Legislative Power ◽  
Management Board ◽  
Fiscal Management ◽  
Budget Committee ◽  
Executive Boards

This chapter explains how legislative power was weakened after the courts agreed with Attorney General Bill Allain that it was unconstitutional for legislators to serve on executive boards and commissions. This chapter discusses the most important separation of powers case in the state’s history, Alexander v. State of Mississippi by and Through Allain (1983). The court decision in the Alexander case resulted in the passage of the Mississippi Administrative Reorganization Act of 1984, which created a new budget making process. The reorganization act created the Joint Legislative Budget Committee (JLBC) and the Fiscal Management Board (FMB).

Temporarily Enhanced Executive Influence over Budget Decisions under Mabus

2020 ◽  
pp. 33-50
Author(s):  
Brian Pugh
Keyword(s):  
Public Education ◽  
Management Board ◽  
Fiscal Management

This chapter discusses budget power that was briefly enhanced under Governor Ray Mabus at the beginning of his administration. It shows how Mabus fended off an attempt by the legislature to weaken executive budget authority by vetoing S.B. 2214. Chapter 4 explains how Mabus worked with the legislature to abolish the Fiscal Management Board and replace it with the Department of Finance and Administration (DFA). This chapter also looks at the efforts made by Mabus to get more funding for public education, more specifically, funding for Mississippi’s B.E.S.T. (Better Education for Success Tomorrow) program.

scholarly journals The Emperor of All Actualities: S.377 Jurisprudence in Comparative Context

2019 ◽  
Author(s):  
Nihal Sahu
Keyword(s):  
Separation Of Powers ◽  
Court Decision ◽  
Colonial History ◽  
Global Theory ◽  
High Court ◽  
Academic Scholarship ◽  
Long Line ◽  
Foreign Law ◽  
Changing Attitudes ◽  
Rule Making

Navtej Singh Johar v. Union of India revolutionized, contemporized, and revitalized our Equality jurisprudence. In this essay, I argue that Supreme Court’s jurisprudence culminating in Navtej is best understood as one in a long line of cases leading us to an expanded notion of equality (Articles 14 and 15) in the context of a gradual and ongoing judicial acceptance of academic scholarship on a global theory of sexual sovereignty. I address the history behind S. 377 including colonial history, early jurisprudence, attempts at repeal, the High Court decision in Naz Foundation, the reversal in Koushal, and the intermediary steps of NALSA and Puttaswamy leading to redemption in Navtej. I also examine the Indian Supreme Court’s changing attitudes towards comparative constitutionalism with a special emphasis on foreign law, examining the global theory and comparing Navtej with its parallel in Lawrence v. Texas with a focus on Spatial Privacy, Deliberative Autonomy, and Expressive Liberty. I further examine the constitutionality of S. 377 in a neutral manner while considering parallels with Lawrence, noticing how a utopian reading of Lawrence maps perfectly onto the singular approach in Naz and the various approaches in Navtej. I also note the most distinct contributions to our jurisprudence made by the bench in Navtej. In doing so, I examine the changes in our Article 14 and Article 15 jurisprudences, our Right to Privacy jurisprudence emanating from Article 21, and the varying judicial attitudes that lead to such changes. I conclude with a note on the importance of clear rule- making, clarity, consistency, and respect for the separation of powers in judicial analysis.

Revisiting Section 81 of the Constitution: The Commencement Date of Legislation (Legislative Power) Distinguished from Promulgation (Legislative Process)

2017 ◽  
Vol 30 (1) ◽  
pp. 193-220
Author(s):  
Loammi Wolf
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Legislative Process ◽  
Constitutional Court ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legislative Power ◽  
Parliamentary Sovereignty ◽  
Head Of State ◽  
Constitutional State

Section 81 of the Constitution regulates promulgation through publication as part of the legislative process (ie, a procedural norm). The provision further creates a presumption that unless the legislature explicitly determines a commencement date in an Act it enters into force upon promulgation. The commencement date of legislation is thus part of the contents of a statute (ie, a substantive norm), which must be determined by the legislature when adopting the legislation. In a number of judgments, however, the Constitutional Court espoused the idea that the commencement date is part of the legislative process instead of being part of the contents of a statute. Thus it allowed the legislature to delegate its power to determine a commencement date for legislation to the president as head of state in transgression of section 44(1)(a)(iii) of the Constitution: this provision only mandates a delegation of core legislative powers to another legislative body. The confusion is partly due to an initial tendency of the Constitutional Court to interpret constitutional provisions in isolation and partly to the unconsidered re-importation of Westminster constitutiona common law. In the Westminster system a delegation of the power to determine a later commencement date for legislation (ie, after promulgation) to the executive and/or head of state was justified in terms of the doctrine of parliamentary sovereignty. Parliamentary sovereignty, however, was abolished in 1994: such a delegation of power is no longer compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state. Compatible with sections 44(1)(a)(iii), 55(2)(b)(i), 79 and 87 of the Constitution. Lately, the Constitutional Court even ruled that the power to determine a commencement date for legislation is an executive power, which is to be exercised in terms of sections 85 and 101 of the Constitution, although section 81 explicitly confers this power upon the legislature. A reconsideration of the Court’s interpretation of section 81 is therefore overdue: it not only compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state.

Constitutionalism and the Westminster Model

2020 ◽  
pp. 189-205
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Due Process ◽  
Separation Of Powers ◽  
Attorney General ◽  
Judicial Independence ◽  
Critical Issue ◽  
Standard Work ◽  
Westminster Model ◽  
The United Kingdom ◽  
Procedural Due Process ◽  
Solicitor General

This chapter evaluates the constitutional framework of the United Kingdom, revealing a disturbing new settlement of State power. In particular, it hones in on the ‘Westminster Model’ of government which advertises a strict separation of powers supposedly insulating judges from direct executive influence. An altogether different reality emanating from the archival trove of intergovernmental files is found; one which challenges the grundnorm of judicial independence embedded within the Westminster model of governance. Although Executive dominance of the judiciary runs contrary to basic texts and beliefs, this chapter lays out an alternative perspective which implicates the senior judiciary in subterranean policymaking that has led to the steady erosion of procedural due process. It examines where the Civil Service fits into this picture, and draws attention to its servants’ inherent shortcomings as ‘bureaucrats of the law’ having assumed responsibility in large part for the body of sub-standard work distributed under the misnomer: ‘Judges’’ Rules. It explains how, on the critical issue of an individual’s vulnerability when confronted by police power, civil servants, tasked with furthering the ‘public interest’, were far more adept at bolstering ‘police interests’, with backing from the then Head of the Judiciary (Lord Chancellor) and his Law Officers (the Attorney-General and Solicitor-General). By documenting key historical events that impacted upon the criminally suspected or accused, awareness of which has been muted or unknown, this Chapter explains how the doctrine of the Separation of Powers is contravened and the principle of judicial independence muddied to the point of non-recognition.

“Government,” “Law,” and the Separation of Powers

1939 ◽  
Vol 33 (3) ◽  
pp. 424-440
Author(s):  
Kenneth C. Cole
Keyword(s):  
Separation Of Powers ◽  
Judicial Power ◽  
Legislative Power ◽  
Administrative Agencies ◽  
The Right ◽  
Rule Making

The continued growth of administrative agencies exercising legislative and judicial (or, if one prefers, “quasi-legislative” and “quasi-judicial”) powers furnishes a constant inducement to reevaluate the separation of powers theory. In a general way, the theory is admittedly hostile to this development as involving an inordinate concentration of power in the executive. Accordingly, we are presented with the problem of whether governmental practice should be accomodated to the theory or the theory revised to fit practice.Of course the pressure of circumstance has already made a considerable impression on doctrinal exposition. Thus it is not seriously contended that the delegation of any rule-making power to administrative agencies is necessarily a delegation of legislative power within the meaning of the doctrine. Nor is it seriously contended that the right of such agencies to conduct a trial and come to a formal judgment thereupon is necessarily a delegation of judicial power—again within the meaning of the doctrine.

scholarly journals Prosecuting Attorneys in a Democracy – A California Perspective

2020 ◽  
Vol 42 (3) ◽  
pp. 141-167
Author(s):  
Patrick McKinley
Keyword(s):  
Separation Of Powers ◽  
Attorney General ◽  
District Attorney ◽  
Criminal Cases ◽  
Voir Dire ◽  
Judicial Control ◽  
District Attorneys ◽  
Federal Constitution ◽  
Search Warrant ◽  
The Impact

A prosecuting attorney in a democracy is very important in the processing of criminal cases- from pre-filing to final appeal. Much of the involvement of the District Attorney, both before a criminal case is filed, and during the prosecution of the case, stems from the “Exclusionary Rule”. It is the usual case that the police will bring their investigation, their arrest warrant or search warrant affidavit to a District Attorney to review it prior to taking it to the judge. In this connection, District Attorneys will themselves reject 5-10% of the warrant requests submitted to them for approval, often asking law enforcement to do some further investigation before resubmitting the warrant. Furthermore, because of the Doctrine of Separation of Powers, only the District Attorney or the California State Attorney General can make the decision to file or not file a case. This Article illustrates the impact of such discretion. The problem of democracy is strictly connected to the process of DA’s selection, what has also been here presented. Another fundamental issue is a role of DA in voir dire, mainly because jury trials are guaranteed by the federal Constitution and are associated with the idea of democracy. Separation of Powers and Judicial Control of the DA, the police, and the sentencing of those convicted of crimes have been analyzed from the perspective of the California law. Additionally, the article includes final comments on the technological progress and its impact on criminal law and democracy. All the conclusions have been made in reference to Author’s experience as Assistant DA in California.

Sign in / Sign up

Export Citation Format

Share Document