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...
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....
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....
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...
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...
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...
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...