Shadow constitutional review: The dark side of pre-enactment political review in Ireland and Japan

2020 ◽  
Vol 18 (1) ◽  
pp. 51-77
Author(s):  
David Kenny ◽  
Conor Casey
Keyword(s):  
Comparative Analysis ◽  
New Zealand ◽  
Judicial Review ◽  
Dark Side ◽  
Major Area ◽  
Negative Effects ◽  
Constitutional Review ◽  
Central Aspect ◽  
The Uk ◽  
The Right

Abstract Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions—Canada, New Zealand, and the UK—we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon “shadow constitutional review,” and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.

scholarly journals Rules, Prudence and Public Value: Public Servants and Social Media in Comparative Perspective

2015 ◽  
Vol 52 (1) ◽  
pp. 75-99 ◽  
Author(s):  
Dennis C. Grube
Keyword(s):  
Social Media ◽  
Comparative Analysis ◽  
New Zealand ◽  
Public Service ◽  
Hierarchical Structures ◽  
Government Agencies ◽  
Public Value ◽  
Public Servants ◽  
Service Departments ◽  
The Uk

The reach of social media is prodigious. Its ubiquitous nature has reshaped the ways in which government agencies can communicate with citizens. But amidst the rush to embrace the opportunities of Twitter, Facebook and other platforms, governments have had to lay down rules to govern how and when public service departments should use social media. This article undertakes a comparative analysis of the formal rules and guidelines in place across four Westminster jurisdictions – Australia, New Zealand, Canada and the UK – to identify the types of behaviours and activities that are seen as desirable when public servants are reaching out to the wider public through social media. The article argues that the horizontal communication patterns associated with social media are fundamentally at odds with the hierarchical structures of the Westminster system of government.

scholarly journals El papel de los jueces en el marco de una carta de derechos: Una teoría de la contención judicial = The Role of Courts under a Bill of Rights: A Theory of Judicial Restraint

2017 ◽  
Vol 13 ◽  
pp. 80
Author(s):  
Aileen Kavanagh
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Weak Form ◽  
Constitutional Review ◽  
Derechos Humanos ◽  
Judicial Supremacy ◽  
El Sistema ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

Resumen: Este trabajo tiene un doble objetivo. La primera parte ofrece una visión de conjunto del sistema de derechos configurado en el Reino Unido mediante la Human Rights Act de 1998, donde se trata de mostrar que, a pesar de haber sido descrito como un ejemplo destacado de la revisión judicial “débil” de constitucionalidad, el sistema británico muestra en realidad muchos rasgos de sutil fortaleza. En la segunda parte se toma como referencia la jurisprudencia de los tribunales británicos en el marco de dicha ley, con objeto de articular una teoría de la contención judicial. La conclusión es que, a la hora de determinar la fuerza o debilidad del poder judicial en un determinado sistema de revisión constitucional, necesitamos ir más allá de los mecanismos formales contenidos en los textos para analizar las doctrinas y los recursos que usan efectivamente los jueces cuando revisan la compatibilidad de la legislación con los derechos.Palabras clave: Revisión judicial en materia de derechos humanos, revisión judicial “débil”, supremacía judicial, contención judicialAbstract: The aim of this paper is twofold. First, it provides an overview of the system of the rights-based under the UK Human Rights Act 1998, trying to show that although it is often described as a leading exemplar of ‘weak-form’ constitutional review, in reality, the UK system displays many signs of subtle strength. Second, it adopts the decision making of the English courts under this bill of human rights to elaborate a theory of judicial restraint. The upshot is that when assessing any system of constitutional review in order to determine the strength or weakness of judicial power, we need to look beyond the formal textual mechanisms to explore the doctrines and devices judges use when reviewing legislation for compliance with rights.Keywords: Rights-based judicial review, weak-form judicial review, judicial supremacy, judicial restraint

scholarly journals Tinjauan Yuridis Putusan Constitutional Review Mahkamah Konstitusi Tentang Hak Mantan Narapidana Untuk Menjadi Pejabat Publik Yang Dipilih

2021 ◽  
Vol 8 (5) ◽  
Author(s):  
Nanang Nur Wahyudi ◽  
Nynda Fatmawati Octarina
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Universal Declaration ◽  
The Political ◽  
Constitutional Court ◽  
Political Rights ◽  
Constitutional Review ◽  
Civil And Political Rights ◽  
The Republic ◽  
The Right

Hak Politik dilindungi hukum, baik secara internasional maupun nsional. secara internasional, hak politik diatur Universal Declaration of Human Rights (UDHR) dan International Covenant on Civil and Political Rights (ICCPR). hak politik juga dilindungi konsitusi kita dan beberapa peraturan Perundang-Undangan lainnya, serutama Undang-Undang no 39 tahun 1999 tentang Hak Asasi Manusia. Adanya ketentuan yang merupakan syarat untuk mencalonkan diri pada pemilihan yang jelas membatasi bahkan meniadakan hak seseorang untuk ikut serta dalam menggunakan hak azasinya. Hal ini jelas merupakan pelanggaran terhadap hak azasi seseorang, yang dalam hal ini hak politik yang dimiliki oleh seorang mantan narapidana khususnya pada kasus korupsi. Apabila kita mencermati ketentuan UUD 1945, maka seorang mantan narapidana juga sebagai warga negara yang memiliki hak politik yang sama dengan warga negara lainnya. Hak Uji materiel terhadap peraturan yang  bertentangan dengan Undang-Undang Dasar 1945, maka kewenangan hak menguji ada pada Mahkamah Konstitusi (MK). Putusan Mahkamah Konstitusi memberi kepastian hukum bahwa seorang mantan Narapidana kasus korupsi masih diperbolehkan untuk mencalonkan diri pada pemilihan kepala daerah karena mantan narapidana masih memiliki hak politik sebagai warga negara. Untuk dapat mencalonkan diri pada pemilihan kepala daerah, maka mantan narapidana setelah melewati masa 5 (lima) tahun  selesai menjalani masa hukuman dan telah kembali kepada kehidupan masyarakat sebagaimana kehidupan masyarakat lainnya. Menghormati hak politik mantan narapidana kasus korupsi sebagai pengakuan terhadap hak azasi manusia dalam negara Republik Indonesia yang merupakan hak konstitusional yang diatur dalam UUD Tahun 1945. Kata Kunci : Narapidana, Judisial Review, Hak, Putusan Mahkamah Konstitusi ABSTRACTPolitical rights are protected by law, both internationally and nationally. Internationally, political rights are regulated by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Political rights are also protected by our constitution and several other laws and regulations, especially Law No. 39 of 1999 concerning Human Rights. There is a provision which is a requirement to run for election which clearly limits and even negates a person's right to participate in exercising their human rights. This is clearly a violation of a person's human rights, which in this case the political rights of an ex-convict, especially in cases of corruption. If we look at the provisions of the 1945 Constitution, an ex-convict is also a citizen who has the same political rights as other citizens. The right to judicial review of regulations that are contrary to the 1945 Constitution, the authority of the right to examine lies with the Constitutional Court (MK). The Constitutional Court's decision provides legal certainty that a former convict in a corruption case is still allowed to run for regional head elections because ex-convicts still have political rights as citizens. To be able to run for regional head elections, ex-convicts after passing through a period of 5 (five) years have finished serving their sentence and have returned to community life as other people's lives. Respect the political rights of ex-convicts of corruption cases as an acknowledgment of human rights in the Republic of Indonesia which are constitutional rights regulated in the 1945 Constitution. Keywords: Prisoners, Judicial Review, Rights, Constitutional Court Decisions

scholarly journals Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

2021 ◽  
Author(s):  
◽  
Charlotte Connell
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Judicial Review ◽  
Direct Result ◽  
Legal Authority ◽  
Bill Of Rights ◽  
New Paradigm ◽  
Constitutional Review ◽  
Orthodox View

<p>The constitutional landscape in New Zealand has undergone significant change over the last 20-35 years to improve the transparency and accountability of decision-making in the three branches of government. While most of these changes are a direct result of legislation, the constitutional role of the court has also been evolving and has seen the development of judicial review of the substance of the law for consistency with the New Zealand constitution. The orthodox view of the constitution is heavily critical of judicial, or constitutional, review of legislation by the courts and considers it to be an illegitimate encroachment on the domain of Parliament. This paper explores the legitimacy of constitutional review of legislation by the courts, specifically constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). To be legitimate, constitutional review by the courts must have both legal authority and be performed consistently with the constitution. This paper observes that s 5 of the Bill of Rights Act has been employed by the courts, without interference from Parliament, to review legislation for consistency with that Act and that the courts use the purposive approach to interpretation and the proportionality analysis to perform such review consistently with the constitution. Finally, the paper explores whether the developing jurisdiction of constitutional review necessitates a new paradigm to define the constitutional relationship between the courts and Parliament because the orthodox view of New Zealand's constitution is no longer supportable as the definitive position</p>

scholarly journals Student Wellbeing Through Teacher Wellbeing: A Study with Law Teachers in the UK and Australia

2019 ◽  
Vol 10 (3) ◽  
pp. 76-83
Author(s):  
Colin James ◽  
Caroline Strevens ◽  
Rachael Field ◽  
Clare Wilson
Keyword(s):  
Comparative Analysis ◽  
Legal Education ◽  
Law Students ◽  
Negative Effects ◽  
Education Programs ◽  
Attitudes And Practices ◽  
The Us ◽  
Teacher Wellbeing ◽  
Strong Position ◽  
The Uk

Research confirms law students and lawyers in the US, Australia and more recently in the UK are prone to symptoms related to stress and anxiety disproportionately to other professions. In response, the legal profession and legal academy in Australia and the UK have created Wellness Networks to encourage and facilitate research and disseminate ideas and strategies that might help law students and lawyers to thrive. This project builds on that research through a series of surveys of law teachers in the UK and Australia on the presumption that law teachers are in a strong position to influence their students not only about legal matters, but on developing attitudes and practices that will help them to survive and thrive as lawyers. The comparative analysis reveals several differences, but also many similarities with law teachers in both countries reporting negative effects from neoliberal pressures on legal education programs that impact their wellbeing, performance as teachers and ability to adequately respond to student concerns.

Constitutional Review and the Review by Courts of General Jurisdiction: Comparative Analysis

2019 ◽  
pp. 34-44
Keyword(s):  
Russian Federation ◽  
Judicial Review ◽  
Legal Regulation ◽  
Regulatory Control ◽  
Constitutional Review ◽  
Judicial Control ◽  
Russian Constitution ◽  
The Russian Federation ◽  
The Government ◽  
The Right

In the article, a comparison is made between constitutional review and judicial review exercised by courts of general jurisdiction in Russia on the basis of comparative-law methodology. The author concludes that it is necessary to empower citizens with the right to consider their appeals within the framework of abstract review by courts of general jurisdiction. A proposal has also been formulated on granting the right to appeal for the protection of the rights of citizens and their associations within the framework of the Russian Code of Administrative Procedure (CAP), the Commissioner for Human Rights in Russian Federation, the Commissioner for Children’s Rights, the Commissioner for the Rights of Business-Owners, and also the other Commissioners for these areas on the subjects of the Russian Federation, and the deputies of all levels – from municipal to federal. The author states that with the adoption of the CAP, the problem of checking federal regulations that have less legal force than Decrees of the Government of the Russian Federation for compliance with the Russian Constitution has not been resolved. It is suggested vesting the courts of general jurisdiction with the right to exercise administrative and judicial control over compliance of such acts with the Russian Constitution. The article reveals the problem of lack of terminological unity in the legal regulation of similar institutions of constitutional and administrative judicial review. The need to unify a number of norms of constitutional and administrative legislation on regulatory control issue is emphasized.

scholarly journals Shared Physical Custody and Child Maintenance Arrangements: A Comparative Analysis of 13 Countries Using a Model Family Approach

2021 ◽  
pp. 309-331
Author(s):  
Mia Hakovirta ◽  
Christine Skinner
Keyword(s):  
Comparative Analysis ◽  
New Zealand ◽  
Gender Equality ◽  
Family Approach ◽  
Maintenance Policies ◽  
The Uk ◽  
Child Maintenance ◽  
The U.S ◽  
Physical Custody

AbstractThis book chapter provides new insights to the question of how child maintenance policies have responded to changing post separation family arrangements and most specifically shared physical custody (SPC). We analyse how SPC is implemented and how it operates in child maintenance policies in 13 countries: Australia, Belgium, Denmark, Estonia, Finland, France, Iceland, New Zealand, Norway, Spain, Sweden, the UK and the U.S. The comparative analysis is based on vignette questionnaire collected in 2017. There are differences in how countries have acknowledged and recognized shared physical custody in their child maintenance policies. It varies from complete annulment of obligations, to some countries making finer grained adjustments to reduce child maintenance obligations and yet others’ making no changes as a result of shared physical custody, with the paying parent still having to provide the full amount of child maintenance. It seems there is no standard practice and nor do the different arrangements map easily onto child maintenance scheme typology. The latter is surprising, as it might have been expected that similarly structured child maintenance schemes would treat shared physical custody in similar ways. This variability demonstrates a lack of coherence across child maintenance policies on how to deal with this phenomenon of greater gender equality in post-separation parenting arrangements.

Voluntary reporting of intellectual capital

2015 ◽  
Vol 16 (4) ◽  
pp. 779-808 ◽  
Author(s):  
Mary Low ◽  
Grant Samkin ◽  
Yuanyuan Li
Keyword(s):  
Human Capital ◽  
Comparative Analysis ◽  
New Zealand ◽  
Intellectual Capital ◽  
Annual Reports ◽  
Content Type ◽  
External Capital ◽  
The Uk ◽  
Australian Universities

Purpose – The purpose of this paper is to examine the quality of voluntary intellectual capital (IC) by universities in New Zealand, Australia, and the UK. Design/methodology/approach – An IC framework was developed to measure IC reporting in the university sector. Content analysis was used to analyse the 2011 annual reports before a three-year comparative analysis of 90 universities (eight New Zealand universities, 38 Australian universities, and 44 UK universities) was undertaken. Findings – New Zealand and Australian universities outperformed the UK universities in terms of IC disclosures. Additionally, the study found moderate increases in the levels of IC disclosures over the period of the study. The quality of IC disclosures by New Zealand universities was generally higher than their Australian and UK counterparts. Internal capital and human capital were the most disclosed categories with external capital being the least frequently disclosed in all three countries. However, the quality of external capital disclosures was higher than internal and human capital. Finally, most IC disclosures were narrative in nature. Practical implications – The framework developed in this study could be adapted, further enhanced, and then applied to exploring IC disclosures in higher educational institutes in other jurisdictions. Originality/value – This is the first comparative analysis of IC disclosures made by universities in three countries.

scholarly journals Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

2021 ◽  
Author(s):  
◽  
Charlotte Connell
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Judicial Review ◽  
Direct Result ◽  
Legal Authority ◽  
Bill Of Rights ◽  
New Paradigm ◽  
Constitutional Review ◽  
Orthodox View

<p>The constitutional landscape in New Zealand has undergone significant change over the last 20-35 years to improve the transparency and accountability of decision-making in the three branches of government. While most of these changes are a direct result of legislation, the constitutional role of the court has also been evolving and has seen the development of judicial review of the substance of the law for consistency with the New Zealand constitution. The orthodox view of the constitution is heavily critical of judicial, or constitutional, review of legislation by the courts and considers it to be an illegitimate encroachment on the domain of Parliament. This paper explores the legitimacy of constitutional review of legislation by the courts, specifically constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). To be legitimate, constitutional review by the courts must have both legal authority and be performed consistently with the constitution. This paper observes that s 5 of the Bill of Rights Act has been employed by the courts, without interference from Parliament, to review legislation for consistency with that Act and that the courts use the purposive approach to interpretation and the proportionality analysis to perform such review consistently with the constitution. Finally, the paper explores whether the developing jurisdiction of constitutional review necessitates a new paradigm to define the constitutional relationship between the courts and Parliament because the orthodox view of New Zealand's constitution is no longer supportable as the definitive position</p>

Briefly Noted

2020 ◽  
Vol 59 (5) ◽  
pp. 888-889
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
New Zealand ◽  
Sea Level ◽  
Asylum Seekers ◽  
Climate Change Impacts ◽  
Future Climate Change ◽  
Negative Effects ◽  
Right To Life ◽  
The Right

In January 2020, the UN Human Rights Committee ruled that states cannot deport people who face “climate change-induced conditions that violate the right to life.” According to a UN press release, the complaint in this case was filed by Ioane Teitiota who was denied asylum in New Zealand and deported with his family to his native Kiribati. Following his deportation, he filed a complaint with the Human Rights Committee, alleging that his deportation violated his right to life and that the rise of the sea level and other climate change impacts rendered Kiribati uninhabitable. Though the Committee determined that, on the facts, Mr. Teitiota's right to life was not violated, the Committee specifically indicated that “"this ruling sets forth new standards that could facilitate the success of future climate change-related asylum claims.” In particular, the Committee determined that asylum seekers need not demonstrate that they would face imminent harm if returned to their home states because the negative effects of climate change can occur suddenly and more slowly, over the longer-term.

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