A Constitution for Aotearoa in the context of Parliamentary Sovereignty

<p>This dissertation argues that human rights and constitutional amendment provisions should be entrenched eternally in the course of adopting a formal constitution in New Zealand. This would prevent abuses of powers within state institutions and provide sufficient protection to basic human rights. The constituent power, which consists of parliament and the electorate, can bind the ordinary parliament through the entrenchment of certain provisions in a formal constitution. The doctrine of parliamentary sovereignty would not be breached if this doctrine is understood to only apply to parliament when acting as an ordinary legislature.</p>

A Constitution for Aotearoa in the context of Parliamentary Sovereignty

<p>This dissertation argues that human rights and constitutional amendment provisions should be entrenched eternally in the course of adopting a formal constitution in New Zealand. This would prevent abuses of powers within state institutions and provide sufficient protection to basic human rights. The constituent power, which consists of parliament and the electorate, can bind the ordinary parliament through the entrenchment of certain provisions in a formal constitution. The doctrine of parliamentary sovereignty would not be breached if this doctrine is understood to only apply to parliament when acting as an ordinary legislature.</p>

Judicial Dictatorship: Potential Institutionalisations of the Constitutional Review Process

<p>This paper concerns constitutional review of legislation, a widely discussed issue within comparative constitutional law. Specifically, this paper addresses the issue of the lack of democratic legitimacy that U.S. style judicial review has and the potential lack of stability that other weak form constitutional review mechanisms have. Three constitutional review procedures are proposed in this paper, with the commonly overlooked executive branch playing a central role in each review mechanism. These proposed procedures aim to solve democratic legitimacy and stability issues. While all three arguably accomplish the mentioned goal, the paper addresses the issues each proposed mechanism has before defending the leading mechanism. The paper offers a possible solution to the seemingly unresolvable tension within constitutional review of parliamentary sovereignty and judicial supremacy. The described mechanisms and the outcomes they produce seems to show that democratically based constitutional review is possible and it is not necessary to rely on unelected judges to ensure that constitutional rights are maintained. Ultimately, this paper aims to show that a redistribution of constitutional review power among all state organs is the best way to ensure that legislation conforms to constitutional norms.</p>

Judicial Dictatorship: Potential Institutionalisations of the Constitutional Review Process

<p>This paper concerns constitutional review of legislation, a widely discussed issue within comparative constitutional law. Specifically, this paper addresses the issue of the lack of democratic legitimacy that U.S. style judicial review has and the potential lack of stability that other weak form constitutional review mechanisms have. Three constitutional review procedures are proposed in this paper, with the commonly overlooked executive branch playing a central role in each review mechanism. These proposed procedures aim to solve democratic legitimacy and stability issues. While all three arguably accomplish the mentioned goal, the paper addresses the issues each proposed mechanism has before defending the leading mechanism. The paper offers a possible solution to the seemingly unresolvable tension within constitutional review of parliamentary sovereignty and judicial supremacy. The described mechanisms and the outcomes they produce seems to show that democratically based constitutional review is possible and it is not necessary to rely on unelected judges to ensure that constitutional rights are maintained. Ultimately, this paper aims to show that a redistribution of constitutional review power among all state organs is the best way to ensure that legislation conforms to constitutional norms.</p>

Parliamentary sovereignty as a barrier to a Treaty-based partnership

<p>The Treaty of Waitangi has repeatedly been affirmed as New Zealand’s founding document, yet our constitutional arrangements rest on the untrammelled principle of parliamentary sovereignty. This paper argues that the doctrine of parliamentary sovereignty is contrary to the sharing of powers provided for in the Treaty, as it concentrates ultimate law-making authority in one body. New Zealand’s constitutional history is canvassed briefly, with a specific focus on the Treaty and the basis of British Crown’s acquisition of sovereignty over New Zealand. It is noted that the current place of the Treaty within New Zealand’s constitution is within the vast powers of parliament - the Treaty can only have legal effect to the extent that Parliament provides for. After looking at examples from statute and common law it is concluded that, rather than limiting parliamentary sovereignty, the current approach ultimately reinforces the absolute and indivisible power of parliament. As such, it is a barrier to a Treaty partnership between the Crown and Maori. To truly give effect to the Treaty a change in the way in which public power in New Zealand is configured and exercised is necessary. Three models for Treaty-based constitutional reform are therefore discussed. The current constitutional review provides Iwi and the Crown with an opportunity to look beyond the confines of the doctrine of parliamentary sovereignty and forge a unique constitutional system that gives effect to the Treaty as New Zealand’s founding document.</p>

Parliamentary sovereignty as a barrier to a Treaty-based partnership

<p>The Treaty of Waitangi has repeatedly been affirmed as New Zealand’s founding document, yet our constitutional arrangements rest on the untrammelled principle of parliamentary sovereignty. This paper argues that the doctrine of parliamentary sovereignty is contrary to the sharing of powers provided for in the Treaty, as it concentrates ultimate law-making authority in one body. New Zealand’s constitutional history is canvassed briefly, with a specific focus on the Treaty and the basis of British Crown’s acquisition of sovereignty over New Zealand. It is noted that the current place of the Treaty within New Zealand’s constitution is within the vast powers of parliament - the Treaty can only have legal effect to the extent that Parliament provides for. After looking at examples from statute and common law it is concluded that, rather than limiting parliamentary sovereignty, the current approach ultimately reinforces the absolute and indivisible power of parliament. As such, it is a barrier to a Treaty partnership between the Crown and Maori. To truly give effect to the Treaty a change in the way in which public power in New Zealand is configured and exercised is necessary. Three models for Treaty-based constitutional reform are therefore discussed. The current constitutional review provides Iwi and the Crown with an opportunity to look beyond the confines of the doctrine of parliamentary sovereignty and forge a unique constitutional system that gives effect to the Treaty as New Zealand’s founding document.</p>

Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

Parliamentary Sovereignty before and beyond Brexit

This article assesses the use of parliamentary sovereignty against the background that UK parliament proclaimed it to be preserved under 2018 and 2020 withdrawal acts. The evidence is analysed to show whether that position works in English law.

Bureaucracy, Democracy and Westminster: The Quest for Political Control

<p>This thesis argues that a Weberian process of bureaucratisation poses a serious threat in itself to the central values and ideals of liberal democracy. Such a threat arises not only from the bureaucratic pathology of 'goal displacement' of substantive ends by instrumental means, but also, because of this pathology, its tendency to mask and embed ideological challenges to liberal democracy. An effective liberal political constitution is therefore necessary to maintain the democratic control of bureaucracy while exploiting the efficiency benefits of bureaucratic administration. Such a political constitution is in fact contained in the Westminster tradition of liberal constitutionalism, based on the principles of parliamentary sovereignty, ministerial responsibility and political neutrality. Through this theoretical lens, the thesis proceeds to examine the trajectory of public sector reforms against the changing political contexts in New Zealand over the past 20 years and its constitutional implications. The NPM reforms in New Zealand, whether intended or unintended, displaced the political and constitutional safeguards implicit in the traditional model of public service with managerial norms which simultaneously serve to embed the neoliberal ideology. Despite the claim of NPM reformers to control bureaucracy, the paradoxical effects of the reform have been to accelerate the process of bureaucratisation and attenuate democratic control. Recent initiatives aimed to address some apparent weaknesses of NPM, have not changed the fundamentals of the managerial system, and thus fail to reverse this trend of declining democratic control of bureaucratic power. A reassertion of the fundamental norms of the Westminster system is recommended to arrest this decline of liberal democracy.</p>