The Canadian “Notwithstanding” or “override” has enjoyed significant scholarly discussion and some name caling: from the “bête noire of Canadian constitutional politics” to “poison pill” (CJ Barak in Israel).
While in Canada the override preserves the provinces / federation balance, in Israel the override is purely a matter of the last word in judicial review: parliament or the Supreme Court.
In 2006 Victoria, Australia enacted an override in its Charter of HR, adding original features such as requiring that override only be made in exceptional circumstances.
The paper provides a first global analysis of overrides including Victoria, and Finland – the longest and, probably the most ignored constitutional override (almost 100 years).
The paper demonstrates the various ways in which an override can be tweaked, making it a potential sophisticated tool of constitutional design. The article also examines proposals for reform, and adds one original proposal for a design feature.
South Africa’s President Zuma has contributed significantly to the growth and development of the country’s constitutional jurisprudence. Since taking office in 2009, there have been numerous constitutional cases decided by various courts against him both personally and as a president. Three recent judgments are particularly worth noting since they have changed the way we understand the Constitution (of the Republic of South Africa, 1996). These cases relate to the separation of powers with regards to the appointment of the National Director of Public Prosecutions, the impeachment of the president, and the appointment of a judge to head a judicial commission of enquiry.
The paper, therefore, will discuss and analyze these cases and their implication on the existing constitutional jurisprudence on separation of powers in relation to the powers of the president and parliament, the independence of the judiciary and the National Director of Prosecution.
A dialogue was developed between Calabresi, Ackerman and Skach regarding the most successful separation of powers model. Calabresi argued in favor of USA's presidential system, Ackerman supported constrained parliamentarism and Skach recognized the popularity of the semi-presidential.Recently, Gardbaum inspired by the work of Levinson/Pildes demonstrated that the separation/fusion between the executive-legislature depends on the political party and electoral system.That said,this article aims to revisit the original question posed by Calabresi on what elements render a constitution successful.It will argue that Constitutional law shall not rely on the conventional constitutional law wisdoms according to which a self-corrective force exits based on the rivalry between the 3 branches or based on the rivalry between political parties.This article aims to examine the constitutional settings that promote free/fair competition between state actors/political parties for the benefit of voters
This paper charts the landscapes of adjudication by the Indian Supreme Court by closely interrogating primarily two cases, Shah Bano v Union of India and Shayara Bano v Union of India to understand if religion and constitutionalism can speak to each other and if they are constitutive of each other. Recent studies have indicated the multiple ways in which Muslim women have navigated between community spaces and the institutions of state to carve out spaces for themselves in the patriarchal legal landscape. Institutional fluidity between Muslim Women’s Networks, a complex Muslim leadership and the state have rendered this process of understanding the languages of ‘gender justice’ in the formal as well as informal adjudicative site a more challenging process. In this adjudicative site, my paper proposes to offer a framework to understand the ways in which the judiciary has negotiated with a liberal interpretive meaning of ‘religion’ in the constitutional order to accommodate readings of equality and sometimes in the reductive model of secularization of religion, modernity, national unity and integration. In doing so, the paper will also frame how the court has imagined and constructed the Muslim woman citizen, who in the eyes of formal as well as informal adjudicative sites does not remain an individual, unmarked bearer of rights but a subject who is a product of state, community and gender.