Uncertain sovereignty: Ceylon as a Dominion 1948–1972

2019 ◽  
Vol 17 (4) ◽  
pp. 1258-1282
Author(s):  
Rehan Abeyratne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Fundamental Rights ◽  
Judicial Power ◽  
Privy Council ◽  
Minority Communities ◽  
Cautious Approach ◽  
Legislative Power ◽  
The Supreme Court ◽  
The Subject

Abstract This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon’s Dominion period (1948–1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less attention from legal scholars. This article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges’ undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

Teaching Constitutional Law Using Real-life Examples: An Example from the Practice of Assent to Bills Passed by the National Assembly After the Tenure of Office of the President and the Assembly

2020 ◽  
Vol 7 (2) ◽  
pp. 140-151
Author(s):  
Chukwuka Onyeaku ◽  
Tonye Clinton Jaja
Keyword(s):  
Supreme Court ◽  
Federal Republic ◽  
Constitutional Law ◽  
Real Life ◽  
Case Law ◽  
Legislative Process ◽  
National Assembly ◽  
The Supreme Court ◽  
The Subject

As a matter of tradition and necessity, teachers of constitutional law within Nigeria (and elsewhere) are often compelled to refer to case law to provide illustrations of principles of constitutional law as enshrined in the constitution of the Federal Republic of Nigeria, 1999 (as amended). However, in some instances, where the said constitution does not provide explicit provisions, teachers of constitutional law are compelled to cite foreign case law as persuasive precedents. Still there are instances wherein there are neither foreign case law nor indigenous case law as precedents. In such situations, teachers of constitutional law are compelled to examine existing case law and relevant legislation until there is a pronouncement from either the Supreme Court or an alteration of the constitution by the National Assembly. One such situation is the subject of the analysis in this article: the situation whereby a president provides assent to bills after the expiration of the tenure of the National Assembly. As legislative tradition, the last session of each Chambers of the Nigeria’s National Assembly culminating each legislative term is usually a valedictory Session. Accordingly, Thursday, 6 June 2019 witnessed the last Session of the eighth National Assembly. As the president transmitted a Proclamation letter terminating the term of the eighth National Assembly inaugurated on 9 June 2015, it becomes paramount to examine the legal and constitutional implications of bills passed by the eighth National Assembly between 2016 and 2018 and up to 5 June 2019, which were assented to by the president after the tenure of the Assembly and office of the president. Thus, this article examines the constitutionality or otherwise of assenting to bills passed by the National Assembly and assented to by the president after the expiration of tenure of their offices. The article argues that the provisions of the 1999 Constitution had been violated when the president signed into law bills passed by the eighth National Assembly after the tenure of office of the president and the eighth National Assembly. It concludes that bills rejected by the president will require another legislative process of being passed into law again by the same Assembly or subsequent one before it can be assented to by the president. Failure to follow this constitutional process will render the assent unconstitutional.

scholarly journals JUDICIALIZAÇÃO E ATIVISMO JUDICIAL EM PERSPECTIVA: UMA ANÁLISE A PARTIR DAS EXPERIÊNCIAS DAS SUPREMAS CORTES DO BRASIL E DO CANADÁ

2020 ◽  
Vol 1 (54) ◽  
pp. 425
Author(s):  
Edith Maria Barbosa RAMOS ◽  
Pedro Trovão do ROSÁRIO ◽  
Sara Barros Pereira de MIRANDA
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Scientific Basis ◽  
Fundamental Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Scientific Journals ◽  
Supreme Courts ◽  
The Supreme Court ◽  
Theoretical Construction

RESUMOA presente pesquisa por escopo analisar os fenômenos da judicialização e do ativismo judicial a partir das experiências da Suprema Corte do Canadá e do Supremo Tribunal Federal brasileiro. Observou-se que, em ambos os países, tem havido, nas últimas décadas, uma contínua expansão da autoridade do Poder Judiciário e da sua atuação em temáticas de natureza política até então abordadas apenas pelos Poderes Legislativo e Executivo, o que pode ser evidenciado a partir da análise das decisões proferidas pelas Cortes Supremas dos dois países. Apesar das diferenças na arquitetura constitucional, ambas as Cortes atuam como condutoras do processo de expansão alcance do poder de suas estruturas judiciárias. O presente artigo foi desenvolvido a partir de levantamento bibliográfico em artigos obtidos em diferentes bancos de dados e indexadores, publicados na integra em português e inglês, acessados de forma gratuita. Foram selecionadas revistas científicas na área do Direito Constitucional Comparado com extratos elevados, qualis A e B. Utilizou-se, ainda, dados constantes em documentos oficiais e na legislação pertinente com recorte epistemológico e científico fundado na construção teórica contemporânea dos Direitos Fundamentais. PALAVRAS-CHAVE: Judicialização; Ativismo Judicial; Suprema Corte do Canadá; Supremo Tribunal Federal brasileiro. ABSTRACTThis research by scope analyzes the phenomena of judicialization and judicial activism from the experiences of the Supreme Court of Canada and the Brazilian Supreme Court. It has been observed that, in both countries, there has been, in the last decades, a continuous expansion of the authority of the Judiciary Power and its action in themes of a political nature hitherto addressed only by the Legislative and Executive Powers, which can be evidenced by from the analysis of the decisions of the Supreme Courts of both countries. Despite differences in constitutional architecture, both courts act as drivers of the process of expanding the power of their judicial structures. This article was developed from a bibliographic survey in articles obtained in different databases and indexers, published in full in Portuguese and English, accessed for free. Scientific journals were selected in the area of Constitutional Law Compared with high extracts, qualis A and B. It was also used data in official documents and relevant legislation with epistemological and scientific basis based on the contemporary theoretical construction of Fundamental Rights. KEYWORDS: Judicialization; Judicial activism; Supreme Court of Canada; Brazilian Supreme Court.

State Constitutional Law in 1934–35

1935 ◽  
Vol 29 (4) ◽  
pp. 610-630
Author(s):  
Charles G. Haines
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
Sole Purpose ◽  
The Supreme Court ◽  
The Subject ◽  
State Taxes ◽  
State Constitutional Law

Validity of Constitutional Amendments. The courts continue to scan with rather meticulous care the procedure for the adoption of constitutional amendments. Where the sole purpose of a proposed constitutional amendment under the initiative provisions of the constitution was to provide for the levy of a “syncrotax,” or a tax on the basis of gross receipts in lieu of all other state taxes, a petition with a short title reading “initiative measure providing for adoption of gross receipts act” was held fatally defective in view of the requirement that every initiative petition have a short title showing the nature of the petition and the subject to which it relates. But according to the supreme court of Florida, a proposal to amend the constitution need not have a title, need not be read on different days or at different times, and need not be concurred in by the governor. And the dissenting justices protested that the majority failed to uphold the requirement that a proposed amendment shall be entered upon the respective journals of the two houses with the yeas and nays, showing a three-fifths vote in favor of the amendment. There must be, however, a violation of express constitutional requirements for the courts to interfere with the procedure in the adoption of amendments.

The Israeli Constitution

2018 ◽  
Author(s):  
Sapir Gideon
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Constitutional Law ◽  
The Supreme Court ◽  
The Subject

Israeli constitutional law is a sphere of many contradictions and traditions. Growing out of British law absorbed by the legal system of Mandate Palestine, Israeli constitutional law has followed the path of constitutional law based on unwritten constitutional principles. This book evaluates the development of the Israeli constitution from an unwritten British-style body of law to the declaration of the Basic Laws as the de facto Israeli constitution by the supreme court and on through the present day.The book is divided into a chronological history, devoted to a description of the process of establishing a constitution; and a thematic one, devoted to the review and evaluation of major constitutional issues that are also the subject of discussion and research in other countries, with emphasis on the unique characteristics of the Israeli case.

The Obvious Foundation Test

2018 ◽  
pp. 109-121
Author(s):  
Raju Ramachandran ◽  
Mythili Vijay Kumar Thallam
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Legislative Power ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
The Future

This essay deals with the ramifications of the judgment in the National Judicial Appointments Commission Case for the basic structure doctrine. The doctrine of basic structure places limits on the legislative power to amend the Constitution, and owes its origins to the judgment of the thirteen-judge bench of the Supreme Court in the Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). According to the authors, the judges in the NJAC Case, by striking down the 99th Amendment to the Constitution of India for violating the basic structure, appear to have conceptually expanded the remit of the basic structure doctrine significantly. They conclude that the contents of what was held to be part of basic structure in the NJAC Case are largely incapable of being defended normatively. Against this background, they chart the significance of the judgment on constitutional law and separation of powers questions in the future.

Decisions of the Supreme Court of the United States on Constitutional Questions, 1911–1914

1915 ◽  
Vol 9 (1) ◽  
pp. 36-49
Author(s):  
Emlin McClain
Keyword(s):  
United States ◽  
Supreme Court ◽  
Constitutional Law ◽  
United States Supreme Court ◽  
The United States ◽  
Boundary Line ◽  
United States Supreme ◽  
Legislative Power ◽  
The Supreme Court ◽  
New Development

As the last summary in the Review of the decisions of the United States Supreme Court on constitutional questions included the cases at the October term, 1910–1911, it may be desirable now under a few headings to group the cases which seem to be of fundamental importance decided during the three judicial years commencing in 1911 and concluding in 1914. Without any numerical summary (which would be difficult and of little value in view of the fact that many cases in which constitutional questions are raised by counsel and briefly referred to by the court are of no significance as indicating any new development or application of constitutional provisions) it may safely be said that the number of important cases in which difficult constitutional questions have been decided has during this period been unusually large. As the activity of Congress in pushing its legislative power constantly closer to the line of its constitutional authority increases, the number of cases in which the limits of such authority are necessarily involved must also increase. But it may further be suggested by way of rough generalization that the principles of constitutional law relating to other subjects on the boundary line between state and federal legislative powers has become reasonably well established, and comparatively few cases of importance relating to their application have recently been decided by the Supreme Court.

Dr. Janel Jeyapaul v. SRM University: Private Organisations and Public Rights

2017 ◽  
pp. 1-14
Author(s):  
Akhileshwar Pathak
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Fundamental Rights ◽  
High Court ◽  
The Supreme Court ◽  
Public Rights

A person can approach the High Court directly under Article 226 for a violation of a Fundamental Right. The Fundamental Rights, however, are available only against the bodies which are ‘state’ within Article 12 of the Constitution. The judgement of the Supreme Court in Dr. Janet Jeyapaul v. SRM University extends the ambit of Article 226 to all bodies, whether governmental or private, which are performing ‘public function’ or ‘public duty’. Imparting education is taken to be a public function. The judgement opens new dimensions of constitutional law

The tenure of English judges

1913 ◽  
Vol 7 (2) ◽  
pp. 217-229 ◽  
Author(s):  
C. H. McIlwain
Keyword(s):  
Supreme Court ◽  
Political Science ◽  
Theory And Practice ◽  
The Political ◽  
The Supreme Court ◽  
History Of ◽  
The Subject ◽  
General Object ◽  
William Iii ◽  
Science Association

At the meeting of the Political Science Association last year, in the general discussion, on the subject of the recall, I was surprised and I must admit, a little shocked to hear our recall of judges compared to the English removal of judges on address of the houses of parliament.If we must compare unlike things, rather than place the recall beside the theory or the practice of the joint address, I should even prefer to compare it to a bill of attainder.In history, theory and practice the recall as we have it and the English removal by joint address have hardly anything in common, save the same general object.Though I may not (as I do not) believe in the recall of judges, this paper concerns itself not at all with that opinion, but only with the history and nature of the tenure of English judges, particularly as affected by the possibility of removal on address. I believe a study of that history will show that any attempt to force the address into a close resemblance to the recall, whether for the purpose of furthering or of discrediting the latter, is utterly misleading.In the history of the tenure of English judges the act of 12 and 13 William III, subsequently known as the Act of Settlement, is the greatest landmark. The history of the tenure naturally divides into two parts at the year 1711. In dealing with both parts, for the sake of brevity, I shall confine myself strictly to the judges who compose what since 1873 has been known as the supreme court of judicature.

The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?

2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Hard Core ◽  
Social Rights ◽  
Cultural Rights ◽  
Basic Law ◽  
The Supreme Court ◽  
The Status ◽  
Interpretive Strategies ◽  
The Right

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

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