scholarly journals WŁADZA TRZECIA „NEUTRALNA”

2016 ◽  
Vol 11 (4) ◽  
pp. 29
Author(s):  
Andrzej Sylwestrzak
Keyword(s):  
Supreme Court ◽  
Political Power ◽  
The Political ◽  
Financial Control ◽  
Proper Functioning ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Law

THIRD POWER: NEUTRAL ONESummary The issues discussed in the article cover six areas: a/ law-based state and the division of power, b/ division of power in the doctrine, c/ division of power in Polish constitutionalism, d/ normative classification of constitutional authority, e/ the political power, opposition power and neutral power, f/ concluding remarks. The aim of the article is to present the arguments for “neutral power” as the creative factor indispensable in the proper functioning of the law-based state. Within Montesquieu tripartite classification, “neutral power” entailes the nessesity to restracture juridical power so thet it will include financial control, constitutional bank control as well as ombudsmen. Accepting the division into ruling power and opposition power, “neutral power” (including the judiciary and the ombudsmen) indicates the kind of power Montesquieu advocated, trough in its more prominent role of the mediator between the powers. “Neutral power”, described in these terms, ought to be independent of the remaining powers through the system of internal elections to all the posts, performer by the Supreme Court representatives. Judges of the Constitutional Tribunal, the Ombudsman or the Cheef of Governmenmt Inspectorate ought to be elected by the Supreme Court Judges.

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 Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

scholarly journals Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

2021 ◽  
Author(s):  
◽  
Matthew Webb
Keyword(s):  
New Zealand ◽  
Cultural Identity ◽  
Supreme Court ◽  
General Application ◽  
The Supreme Court ◽  
The Law ◽  
Court Intervention

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

scholarly journals Interpretative Discretion of Judiciary and the Well-Being of the Child

2020 ◽  
Vol 29 (3) ◽  
pp. 187
Author(s):  
Katarzyna Hanas
Keyword(s):  
Supreme Court ◽  
Well Being ◽  
Judicial Discretion ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Law ◽  
Common Criterion ◽  
Full Protection ◽  
Law Making

<p>The well-being of the child is a common criterion in many Polish normative regulations pertaining to different branches of law. It is both a tool for the law-making and the executive bodies, employed to direct the law-applying bodies towards ensuring full protection of the child. This article is focused on analysing interpretative judicial discretion with respect to the well-being of the child as manifested in the judicial decisions of the Supreme Court and in the judgements of the Supreme Administrative Court and Constitutional Tribunal. In the course of the research, the author undertakes to determine the essence of interpretative judicial discretion in cases predominantly focused on establishing the current and postulated situation of the child with a view to ensuring the most favourable ruling for the same.</p>

scholarly journals The Return of Federalism and Constitutional Politics: Analyzing the Role of the Supreme Court as an Arbiter in Contemporary Political Society

Federalism-E ◽  
1969 ◽  
Vol 14 (1) ◽  
pp. 5-20
Author(s):  
Marjun Parcasio
Keyword(s):  
Supreme Court ◽  
The Political ◽  
Political Society ◽  
Constitutional Politics ◽  
Constitutional Order ◽  
The Past ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Death Experience

Since the ascendancy of the Charter of Rights and Freedoms as the centrepiece of a new constitutional order in Canada, there has been a distinctive decline of federal discourse in the courts and within the political sphere. Traditional cases pertaining to the division of powers at the Supreme Court have been eclipsed by the novelty of rights jurisprudence that has consumed the court in the past three decades1. Moreover, constitutional issues have been considered an anathema since the failure of the negotiations at Meech Lake and Charlottetown, exacerbated by the near-death experience for federalism in the 1995 referendum in Québec. In recent years, however, the changing nature of Canada’s political dynamics has signalled a return of federalism and constitutional politics [...]

Argentina judicial reform points up Fernandez weakness

2021 ◽  
Keyword(s):  
Supreme Court ◽  
Political Power ◽  
Judicial Independence ◽  
Vice President ◽  
The Political ◽  
Judicial Reform ◽  
Content Type ◽  
Her Family ◽  
The Supreme Court

Significance With an agenda increasingly influenced by Vice-President Cristina Fernandez de Kirchner (CFK), the objectives of judicial reform now appear limited to closing pending investigations against her and her family. Impacts CFK’s increasing influence in judicial policy will reinforce the view that Fernandez lacks the political power to advance his own agenda. The confrontational approach is increasing the influence of hardliners, which is ideologically damaging to other government priorities. Moves to reduce judicial independence will further undermine institutional dialogue between the Supreme Court and the executive.

scholarly journals The Framers' Muse on Republicanism, the Supreme Court,and Pragmatic Constitutional Interpretivism

1991 ◽  
Vol 53 (2) ◽  
pp. 251-288 ◽  
Author(s):  
David M. O'Brien
Keyword(s):  
Conceptual Change ◽  
Supreme Court ◽  
The Political ◽  
Constitutional Interpretation ◽  
The Supreme Court ◽  
Novel Theory ◽  
Republican Government ◽  
Republican Liberty ◽  
Republican Theory

The so-called Madisonian dilemma has dominated recent debates over the role of the Supreme Court and suggested a “majoritarian paradigm” for constitutional interpretation. But a reexamination of James Madison's unique contributions to republican theory indicates that the “Madisonian dilemma” is in many ways misleading and unfaithful to his political vision. Madison, argues the author in Section I, worked a conceptual change in republican theory. Madison did so because he was convinced that republican liberty (and government) was primarily threatened by popular majorities and legislative majoritarianism in Congress and the states. For that reason, Madison advanced his well-known “naturalist” argument for republicanism and, on that basis, argued for buttressing the political architecture of republican government with “auxiliary precautions” for securing republican liberty. From Madison's reconstruction of republicanism, Section II moves to his conversion to the project of amending the Constitution with a declaration of rights and the basis he laid for the Supreme Court's role in defending republican government and liberty. Finally, Section III takes up Madison's view of the role of the Supreme Court and his articulation of a novel theory of pragmatic constitutional interpretivism.

Sign in / Sign up

Export Citation Format

Share Document