Equal protection as inclusive political participation and judicial review

We propose a new approach to judicial review of equal protection, one that offers vulnerable minorities more inclusivity than the prevailing American doctrine of suspect classifications. Building on Dr. Drymiotou’s original theory of the Right to Equal Democratic Belonging in a Democratic Society, we explain that her concept of institutionalized political disadvantage has two distinct functions in the analysis of equal protection cases. First it provides a criterion for analysis of the scope of the right to equal belonging. A finding of institutionalized political disadvantage would establish a prima facie violation of this right and compel judges to ask if the restriction of the right is justified in a democratic society. At this justification stage, the second function of the criterion shifts the judicial lens to the political institution, responsible for the prima facie violation. This function would call judges for considering the representation and participation of the vulnerable minority in the relevant political institution. The greater the disadvantage of the vulnerable minority in the political institution, the more rigorous judicial review should be.

Contextual review: the instinctive impulse and unstructured normativism in judicial review

Contextual review is a style of judicial method that has increasing currency within Anglo-Commonwealth judicial review of administrative action. Its hallmark is the rejection of doctrinal or categorical methods to guide judicial supervision (such as the scope, grounds or intensity of review methods that have dominated the framework for judicial intervention). Under contextual review, judges assess the circumstances in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. In this paper, I identify and explain the various instances where this method is deployed in judicial review in England and Wales, Canada, Australia, and New Zealand. I also evaluate the efficacy of this approach to review, especially against rule of law standards. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.

Judicial activism and the Rule of Law: an institutional paradox?

There are scholars who defend that judicial activism is a necessary mechanism to overcome the current social inequalities. According to them, the lack of political will and the institutional blockades, it is sufficient justification for judicial activism. However, there are no studies about the impact of judicial activism on the Rule of Law. For this reason, we are analyzing what is the relationship between judicial activism and the Rule of Law.

To answer this question, we set two objectives: 1) to classify activism according to its impact on the Rule of Law and 2) to explain the types of impact according to whether judicial activism consolidates or weakens the Rule of Law. In this paper, we argue that judicial activism depends on a weak Rule of Law but its claims depend on strong institutions to solve structural social problems. In other words, judicial activism implies a weak Rule of Law but its promises of change demand strong institutions.

Can equity constrain the power of Constitutional Courts to invalidate the application of potential unconstitutional statutes?

The power of Constitutional Courts (CC) to invalidate the application of statutes when their application leads to unconstitutional results, resembles the equitable power of certain courts to correct problems of under-inclusiveness. Equity has historically followed two routes: correction and interpretation, which have been historically conflated due to St German. The conflation disappears when it is clear that the normative work behind equity is achieved by correction. Under this light, the corrective jurisdiction of CC to invalidate statutes follows a very similar pattern than corrective equity; it depends on a higher norm (ie, the Constitution) providing the grounds to defeat an inferior norm (ie, a statute). The invalidatory power of CC can thus be considered equitable; if this is so, it shouldn’t be unconstrained. Contrarily, it ought to be limited by adjudicatory ways pertinent to remedying a problem of legislative foresight leading to unconstitutional results

The Perils of Positivist Thinking in Public Law

This contribution examines the perils encountered in Maltese jurisprudence in the past fifty-five years since Independence , of giving too literal interpretation to constitutional provisions, creating problems and bizarre decisions in the process . The most serious incident in this regard was the disregard of constitutional supremacy in 1974 by amending the supremacy clause in Malta’s Constitution. The author examines several Maltese cases underlining the faults in, and perils of, such thinking.