Constitutional vs Statutory Bills of Rights with Weak-Form Judicial Review

Weak-form judicial review allows legislatures to override judicial decisions on rights through the ordinary lawmaking process. It can be incorporated into a bill of rights that is constitutionally entrenched, as with the Canadian Charter of Rights and Freedoms, or an unentrenched statute, as with the NZ Bill of Rights Act and UK Human Rights Act. This paper considers the merits of the two methods of establishing weak-form judicial review. Benefits of constitutional entrenchment include establishing the bill of rights as superior law, encouraging robust judicial enforcement of rights, and establishing legislative override as extraordinary, signalling that it should only occur after careful legislative deliberation. Benefits of an unentrenched statute include multiple forms of legislative override, allowing legislatures to tailor their response to each individual case, and progressive development of the remedial system, allowing recalibration of the bill of rights in light of experience. The paper applies these considerations to the ongoing debate about whether Australia should adopt a bill of rights and, if so, what form it should take.

A Boat On The Horizon: Legislative Urgency and Weak-form Review

Weak-form systems of judicial review have been praised as a means of reconciling democratic self-governance with constitutionalism, providing for popular engagement with counter-majoritarian decisions through a democratically elected body. Central to the normative appeal of this model is the notion that the legislature will engage in deliberation and contestation regarding the desirable scope of rights-protections. Drawing on case studies from New Zealand, Australia and Canada, this paper seeks to demonstrate how rights-based contestation or deliberation can be undermined when legislation is considered by parliament in contexts of urgency, both formal and informal. This has consequences for the normative appeal of weak-form review, suggesting that in situations of perceived crisis where rights protections may be most needed, they may also be most vulnerable.

Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances

One of the most intriguing questions in contemporary constitutional theory is why are political power-holders willing to bestow power on courts and to acknowledge their autonomy. In the current paper, I seek to offer an explanation. It focuses on a doctrine developed by the Israeli Supreme Court (ISC) since the early 1990s under which the Court removes office holders from their position by ordinary judicial review proceedings. This doctrine is not founded on any formal constitutional settings, but it had significance influence on the relationships between the judiciary and the political branches, as it was the basis for the removal of several major political figures including ministers and top bureaucrats from office. I argue that one cannot understand the relationships between courts and politics in Israel without bringing this component into account. I describe the development of this practice and its influence on the relationships between courts and politics in Israel.

‘Popular Sovereignty and the Enemies of the People’: Can a ‘Theory of Everything’ Legitimise a Role for the Judiciary as Guarantors of Environmental Rights

The decline of sovereignty in a globalised post-sovereignty era is much spoken of but the term has both external and internal dimensions. If what is required is a new constitutional dynamic in which the claims of popular sovereignty require a reframing of constitutional thinking, the question then is what might or could be the normative basis for a new framework of governance going forward and more specifically what might be the implications for the judicial role within that framework?

Contemporary public fiduciary theory claims to offer “an interpretive theory of everything” because it can illuminate “the salient features of the representative structure of public fiduciary relations.” This paper considers whether a theorising of sovereignty in terms of public trust and fiduciary obligation can sustain a legitimate role for the judiciary as guarantors of environmental rights for present and future generations and if so, what boundaries are appropriate and how should they be set?

From Government to governance; from judiciary to…?

In constitutional law, the focus on regulators is accountability, given their power to legislate, administer, and adjudicate. In politics, the focus is to establish and maintain public legitimacy, and they are in the political spotlight only if something goes wrong, e.g. financial crisis. This is tied to “institutional strength”, to have the greatest impact in polycentric settings. To build legitimacy, they must establish second order accountability, i.e. transparency. As such, there is a need to justify decision making. Regulators do not appear to be subject to the same rigorous oversight in judicial review as other government bodies. Regulators are subject to other factors, such as politics, economics, professionalism and expertise. As such, courts have developed avoidance mechanisms.
This paper asks whether there is a constitutional justification for this avoidance. It seeks to find a constitutional framework for the regulator, and understand the judicial function in that context.

Bills of Rights with Strings Attached – Protecting Death Penalty, Slavery, Discriminatory Religious Practice and the Past from Judicial Review

Some constitutions use savings clauses to shield from judicial review laws that have been in force prior to their adoption, thus, fostering a unique constitutional dialogue. Countries have used such provisions to shield discriminatory religious and gender practices, the death penalty, and even slavery. This puzzling phenomenon should have spurred discussion, yet there is no literature offering a comprehensive theoretical and comparative framework. When the rationale for adopting a savings clause is that existing law is good, this might lead to originalism. In contrast, when savings clauses are adopted to stabilize the system or shield discriminatory practices, courts may try to read them narrowly. Savings clauses suggest that constitutional development is more evolutionary than typically suggested. But these clauses might postpone rather than resolve conflict. At times, no less than a revolution is needed to restart the constitutional system free of the burden of savings clauses.

Juridical Interest in Constitutional Proceedings

The paper covers the issue of requiring plaintiff to prove juridical interest in constitutional proceedings befor the Maltese courts of constitutional jurisdiction; while in human rights actions one must prove that an infringement occurred in relation to applicant no such requirement is needed for non-human rights actions; In spite of this the Maltese courts have applied this private law notion of juridical inteerst across the board weakening in the process certain constitutionbal provisons. For instance the constitutional requirement that a Minister be appointed from amongst members of the Legislature can hardly be enforced by the Courts if the promoter of a constitutional action in case of an infringemnt of such provision is required to prove a direct and juridical interest in the case. The danger of applying private law notions to public law is that certain provisions of the Maltese Constitution might be rendered unenforceable. The paper covers Maltese jurisprudence in this regard and suggests certain changes in the way the notion of juridical interest a purely judicial doctrine may be applied .