scholarly journals Tapping the Potential of Senate-Driven Reform: Proposals to Limit the Powers of the Senate

2015 ◽  
Vol 24 (2) ◽  
Author(s):  
Andrew Heard
Keyword(s):  
Supreme Court ◽  
Status Quo ◽  
Constitutional Amendment ◽  
The Political ◽  
Legislative Process ◽  
Political Leaders ◽  
Political Will ◽  
The Supreme Court ◽  
The Status ◽  
Democratic System

In the immediate aftermath of the 2014 Senate Reform Reference, there was considerable talk about the limitations that the Supreme Court had put on Senate reform. Some political leaders expressed frustration and declared that we are left with the status quo. But, that view both misunderstands what the Court said and underestimates what can be achieved through non-constitutional means. There is much that can be done simply with the political will to change the Senate situation without resorting to constitutional amendment; senators already have the power to effect some serious reform from within. This paper focuses on an unorthodox suggestion: that substantive reforms might be achieved through changes to the Rules of the Senate governing its legislative process. With some changes to both the legislative and appointment processes, substantial improvements to the Senate are both possible and achievable. The result would be a Senate better able to perform its intended function as a chamber of sober second thought. It would also answer the most serious concerns about an appointed Senate’s role in a modern democratic system.

Part 3 Institutional Control of Constitutionalism, 3.5 The Last Defender of Constitutional Reason? Pakistan’s Embattled Supreme Court

2012 ◽  
Author(s):  
Khan Hamid
Keyword(s):  
Supreme Court ◽  
Political History ◽  
Status Quo ◽  
Political Environment ◽  
Judicial Activism ◽  
Institutional Control ◽  
Chief Justice ◽  
The Supreme Court ◽  
The Status ◽  
History Of

This chapter begins with a brief overview of the constitutional and political history of Pakistan. It then discusses how the judiciary in general, and the Supreme Court in particular, had to function in a difficult and complex constitutional and political environment during the last sixty years. It details acts of judicial activism; efforts of lawyers throughout Pakistan to restore the status quo in the judiciary as it had existed on November 2, 2007; and the challenges faced by the restored Chief Justice and the Supreme Court.

Domesticating Treaties in the Legal System of South Sudan – A Monist or Dualist Approach?

2020 ◽  
Vol 28 (3) ◽  
pp. 378-400
Author(s):  
Ruben S. P. Valfredo
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
South Sudan ◽  
Status Quo ◽  
Treaty Ratification ◽  
The Supreme Court ◽  
The Status ◽  
Mixed Approach ◽  
International Conventions

This article examines the approach for the domestication of treaties in South Sudan. Such examination is undergone in light of the theories for the domestication of international law norms into the domestic legal systems of state members of the international community. The article establishes that the approach in South Sudan is not clearly indicated, and seems to be inconsistent with regard to the practice of various institutions linked to the domestication of treaties process in South Sudan. However, the article expands on two foundations: the status quo and the ‘ought to be’ approach. The article argues that the approach as it exists seems to be a monist rather than a dualist approach. This is evident from the indicators of South Sudan's constitutional, legislative and judicial settings such as the text of the Transitional Constitution of South Sudan 2011, the treaty ratification process, the practices of the National Legislative Assembly in respect of international conventions and a judicial circular issued by the Supreme Court of South Sudan. Furthermore, the article advances that the ‘as ought to exist’ approach needs to be a clearly mixed approach, partly monist and partly dualist. Such approach combines the advantages associated with each approach in one place. The article recommends that there is a need to have a well informed, well established and clear status in respect of the domestication approach guided by the various arrangements and settings highlighted above. It may also take account of the various states’ attitudes towards international law and the legal school of thought which forms the basis of South Sudan legal system. Such recommendation could be materialised via an act of parliament, a regulation or a practice manual.

Senate Voting on Supreme Court Nominees: A Neoinstitutional Model

1990 ◽  
Vol 84 (2) ◽  
pp. 525-534 ◽  
Author(s):  
Charles M. Cameron ◽  
Albert D. Cover ◽  
Jeffrey A. Segal
Keyword(s):  
Statistical Model ◽  
Supreme Court ◽  
Large Degree ◽  
The Political ◽  
Political Environment ◽  
Roll Call ◽  
Roll Call Voting ◽  
The Supreme Court ◽  
The Status ◽  
The Individual

We develop and test a neoinstitutional model of Senate roll call voting on nominees to the Supreme Court. The statistical model assumes that Senators examine the characteristics of nominees and use their roll call votes to establish an electorally attractive position on the nominees. The model is tested with probit estimates on the 2,054 confirmation votes from Earl Warren to Anthony Kennedy. The model performs remarkably well in predicting the individual votes of Senators to confirm or reject nominees. Senators routinely vote to confirm nominees who are perceived as well qualified and ideologically proximate to Senators' constituents. When nominees are less well qualified and are relatively distant, however, Senators' votes depend to a large degree on the political environment, especially the status of the president.

scholarly journals La Cour suprême et l'amendement constitutionnel

2005 ◽  
Vol 21 (1) ◽  
pp. 31-41
Author(s):  
Guy Tremblay
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Status Quo ◽  
Supreme Court Of Canada ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Status

The decisions rendered last December by the Supreme Court of Canada in Blaikie and Forest and in the Reference concerning the Senate are closely related. They curtail Canadian constitutional amending powers, especially those which were thought to have been repatriated in 1949. The reasons of the Court in these cases are commented upon and their impact is assessed. The author submits that the Supreme Court deviates from the principle of a Constitution similar to that of the United Kingdom. It gives itself too much leeway and not enough to Parliament and legislatures. But at the same time, the Supreme Court appeared to take account of constitutional propriety in construing a power which Ottawa gained unilaterally. The overall result is so favourable to the status quo that it increases the necessity for a fresh pact to be negotiated.

scholarly journals Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland

2020 ◽  
Author(s):  
Katarzyna Gajda-Roszczynialska ◽  
Krystian Markiewicz
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Social Insurance ◽  
The Political ◽  
National Council ◽  
Political Will ◽  
The Rule Of Law ◽  
Lower House ◽  
The Supreme Court ◽  
Disciplinary System

Abstract This article advances the thesis that disciplinary proceedings may constitute a tool for breaking the rule of law in Poland. In 2017, as part of a package of legal changes to the judiciary, a disciplinary system was created in Poland to ensure that judges were subservient to the political will of the authorities. From the beginning, new disciplinary officers appointed by the Minister of Justice (the Prosecutor General) have targeted judges who disagree with unconstitutional changes to the judiciary. Disciplinary proceedings are by no means repressions that affect judges who demand that other authorities respect the rule of law in Poland. The article discusses, on a step by step basis, the practical mechanisms taken by the political authorities to break the rule of law in Poland. Particular attention is paid to the measures which have been taken concerning the judiciary. The article discusses the judgment of the CJEU on 19 November 2019 in combined cases C-585/18, C-624/18, and C-625/18 and the implementing resolution of the combined Civil, Criminal and Labour and Social Insurance Chambers of the Supreme Court on 23 January 2020 as well as the collapse of the rule of law in Poland from a practical perspective. The analysis of the recent events shows that after the so-called Muzzle Law (A bill amending the Act on the Organization of Ordinary Courts, the Act on the Supreme Court and the Act on the National Council of the Judiciary was submitted on 12 December 2019, and then voted on by the parliamentary majority in the lower house of the Polish Parliament (Sejm) on 20 December 2019.) came into force, the application of the resolution of the combined Civil, Criminal and Labour and Social Insurance Chambers of the Supreme Court on 23 January 2020 implementing the CJEU judgment in the joined cases C-585/18, C-624/18, and C-625/18 of 19 November 2019 can be and, in fact, is penalized by further disciplinary proceedings, which constitutes a real threat to the already weakened rule of law. Institutions and, above all, judges who are safeguarding the rule of law are being destroyed.

scholarly journals THE SUPREME COURT AND MANDATORY RETIREMENT: SANCTIONING THE STATUS QUO

2011 ◽  
Vol 4 (1 - 4) ◽  
pp. 1993
Author(s):  
Shirish Chotalia
Keyword(s):  
Supreme Court ◽  
Status Quo ◽  
Mandatory Retirement ◽  
The Supreme Court ◽  
The Status

THE SUPREME COURT AND MANDATORY RETIREMENT: SANCTIONING THE STATUS QUO

scholarly journals Coronavirus and Politics: Demands and Values in the Age of the Pandemic

2020 ◽  
Vol 11 (2) ◽  
pp. 109-121
Author(s):  
D. A. Parenkov ◽  
K. E. Petrov
Keyword(s):  
Political Process ◽  
Mortality Salience ◽  
Charismatic Leadership ◽  
Status Quo ◽  
The Political ◽  
Power Structures ◽  
Political Leaders ◽  
Personal Connections ◽  
The Status ◽  
The Masses

The article discusses the political eff ects of the COVID-19 coronavirus pandemic in the framework of Terror Management Theory. Growing fears caused by the pandemic provoke mortality salience across the globe. Political and psychological eff ects of mortality salience are manifested in the strengthening of conservative orientations and support for status quo. Awareness of mortality provides support to power structures, incumbent political leaders, strengthening patriotic attitudes and rejection of external groups. The pandemic strengthens the eff ect of rallying around the fl ag and results in an increase in the ratings of ruling political leaders. The growing support for political leaders confi rms the orientation towards maintaining the status quo and conservative attitudes. In a pandemic, patriotic feeling, the demand for order, the growth of distrust of fellow citizens, and the rejection of freedoms in favor of security come to the fore. In the context of mortality salience orientation to support specifi c types of political leadership is intensifying. It seems that in the near future, electorally successful types of leaders will include two major types. Firstly, politicians inclined to charismatic control of the trust of their supporters based on a confi dent and uncompromising orientation to their own ego, most often on the basis of previously gained fame. Secondly, those politicians who are capable of expressing simple human closeness to ordinary people and are focused on creating and maintaining social ties with a constituency. Charismatic leadership is oriented towards personal decision-making at leader’s own peril and risk. The second type is associated with horizontal dialogue with citizens. and creating the maximum numberof personal connections. In the current situation, the role of personal qualities of leaders will only grow, both as objects of attitudes and aspirations on the part of the masses, and as subjects of the political process, making political decisions that are crucial for society.

From an unconstitutional constitutional amendment to an unconstitutional constitution? Lessons from Honduras

2019 ◽  
Vol 8 (1) ◽  
pp. 40-70 ◽  
Author(s):  
DAVID E LANDAU ◽  
ROSALIND DIXON ◽  
YANIV ROZNAI
Keyword(s):  
Supreme Court ◽  
Political Institutions ◽  
Constitutional Law ◽  
Constitutional Amendment ◽  
The Political ◽  
Potential Utility ◽  
The People ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Global Constitutionalism

Abstract:The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.

scholarly journals Unsteady Architecture: Ambiguity, the Senate Reference, and the Future of Constitutional Amendment in Canada

2015 ◽  
Vol 60 (4) ◽  
pp. 883-903 ◽  
Author(s):  
Emmett Macfarlane
Keyword(s):  
Supreme Court ◽  
Term Limits ◽  
Unintended Consequences ◽  
Constitutional Amendment ◽  
The Political ◽  
Retirement Age ◽  
Logical Consistency ◽  
Political Implications ◽  
The Supreme Court ◽  
The Future

This article critically examines the Supreme Court of Canada’s opinion in the Senate Reform Reference from the perspective of its coherence in interpreting the various amending procedures in Part V of the Constitution Act, 1982. It analyzes the ways that the underlying logic of the Court’s reasoning, particularly with respect to the method of selecting senators and senatorial term limits, creates ambiguity and risks unintended consequences for future attempts at constitutional amendment. The Court’s explicit refusal to distinguish between the federal government’s unilateral ability to enact a retirement age and its logic that term limits, regardless of length, require the consent of the provinces under the general amending procedure lacks logical consistency and arguably erodes the unilateral amending procedure to a problematic degree. In the context of its reasoning with respect to changes to the method of selecting senators, the Court’s reliance on the amorphous notion of the “constitutional architecture” clouds the definable limits of “method of selection” under section 42(1)(b). The Senate Reform Reference introduces considerable ambiguity into what changes the federal executive can implement with respect to the appointments process itself. The article concludes by exploring the political implications that the decision has for the future of Senate reform specifically and for our ability to amend the constitution generally.

The Evolving Dilemma of the Status Quo in Nagorno-Karabakh

2016 ◽  
Vol 27 (3-4) ◽  
pp. 467-478 ◽  
Author(s):  
Anahit Shirinyan
Keyword(s):  
Use Of Force ◽  
Balance Of Power ◽  
Status Quo ◽  
The Political ◽  
Fair Play ◽  
Security Dilemma ◽  
Political Will ◽  
The Status ◽  
Military Balance

The 4-day war in Nagorno-Karabakh in April 2016 has shown that a shift in the political and military balance of power between the conflicting parties is not enough to reverse the status quo by military means. The use of force and the threat of war aggravate the conflict’s security dilemma, further consolidating the status quo. As the osce Minsk Group’s mediation efforts remain hostage to the geopolitics behind the conflict, it is the political will of the conflicting parties and their adherence to fair play and mutual compromise that can shift the logic of the conflict’s dynamics into a more constructive course.

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