scholarly journals La Cour Supreme et le Partage des Competences

1969 ◽  
pp. 21 ◽  
Author(s):  
Jean-Charles Bonenfant
Keyword(s):  
The Political ◽  
Constitutional Court ◽  
Privy Council ◽  
Division Of Powers ◽  
The Supreme Court ◽  
French Speaking ◽  
Institu Tions ◽  
English Speaking ◽  
Constitutional Decisions ◽  
Political Economic

In the B.NA. Act and the Senate Canada has had two limping federative institu tions for over century. This has given more important role to the judiciary in interpreting the constitution than in other countries, Switzerland excepted. From its inception until the abolition of appeals to the Privy Council, the S.C.C. has often been unjustly kept in the shadows; its decisions often contained more of substance than those of the Privy Council. It appears that since 1949 the S.C.C. has rejected literal interpretation of the outdated B.NA. Act and has been prepared to create the law necessary for the political, economic and social functioning of the country. Unless change occurs in our institutions, we may drift into kind of neofederalism that amounts to government by judges. This is result to be feared, no matter how honest the judges or generous their decisions may be. Since the S.C.C. can create law in respect of the division of powers, it is under standable that Quebec, province different from the others, has not always accepted the decisions of the S.C.C. enthusiastically. As long as the S.C.C. was subordinate court its constitutional decisions were not feared in Quebec: rather, there was longstanding fear that the purity of Quebec civil law would be endangered. Since the 1974 amendments to the Supreme Court Act civil appeals will be considerably fewer and Quebec's problem in respect of the S.C.C. will above all relate to the division of powers. Although it would be difficult to specify any anti-Quebec attitudes on the S.C.C. bench, the court is still perceived by most French-speaking Quebeckers as primarily English-speaking institution as distant and strange as the Privy Council, and above all pro-federal tribunal. Several calls for the establishment of constitutional court have been made. Although number of decisions of the S.C.C. over the last twenty-five years have proven to be blessing to Quebec, two recent decisions have been perceived as unjustified federal int

scholarly journals Defining Judicial Independence and Accountability Post Political Transition

2019 ◽  
Vol 5 (2) ◽  
pp. 294
Author(s):  
Ibnu Sina Chandranegara
Keyword(s):  
Supreme Court ◽  
Political System ◽  
Judicial Independence ◽  
Political Transition ◽  
The Political ◽  
New Order ◽  
Constitutional Court ◽  
Judicial Corruption ◽  
The Supreme Court ◽  
Political Configuration

Indonesian constitutional reform after the fall of Soeharto’s New Order brings favorable direction for the judiciary. Constitutional guarantee of judicial independence as regulated in Art 24 (1) of the 1945 Constitution, has closed dark memories in the past. This article decides that the Judiciary is held by the Supreme Court and the judicial bodies below and a Constitutional Court. Such a strict direction of regulation plus the transformation of the political system in a democratic direction should bring about the implementation of the independent and autonomous judiciary. But in reality, even though in a democratic political system and constitutional arrangement affirms the guarantee of independence, but it doesn’t represent the actual situation. There are some problems that remain, such as (i) the absence of a permanent format regarding the institutional relationship between the Supreme Court, the Constitutional Court, and the Judicial Commission, and (ii) still many efforts to weaken judiciary through different ways such criminalization of judge. Referring to the problem above, then there are gaps between what "is" and what "ought", among others. First, by changing political configuration that tends to be more democratic, the judiciary should be more autonomous. In this context, various problems arise such as (i) disharmony in regulating the pattern of relations between judicial power actors, (ii) various attempts to criminalize judges over their decisions, and (iii) judicial corruption. Second, by the constitutional guarantee of the independence of the judiciary, there will be no legislation that that may reduce constitutional guarantee. However, there are many legislation or regulations that still not in line with a constitutional guarantee concerning judicial independence. This paper reviews and describes in-depth about how to implement constitutional guarantees of judicial independence after the political transition and conceptualize its order to strengthen rule of law in Indonesia

scholarly journals O ESTADO DE COISAS INCONSTITUCIONAL EM MATERIA AMBIENTAL: SEUS FUNDAMENTOS NA ADO 60/DF

2021 ◽  
Vol 5 (1) ◽  
pp. 20-32
Author(s):  
Airton Roberto Guelfi
Keyword(s):  
Natural Resources ◽  
Federal Government ◽  
The Political ◽  
Constitutional Court ◽  
Political Field ◽  
The Social ◽  
The Supreme Court ◽  
Qualitative Nature ◽  
State Of Affairs ◽  
Real State

This article aimed to highlight the social, political and administrative factors that underpinned the recent unconstitutional state of affairs decision on environmental matters in Brazil, issued by Minister Luís Roberto Barroso at ADO60/DF. The research was bibliographic and documentary and its approach was of a qualitative nature. The results remained evident in the social field throughthe various manifestations of hostilities of the Federal Government against individuals and legal entities engaged in the defense of the environment, in the political field through the decision to extinguish and relocate various bodies linked to the defense of natural resources and in the field administrative through the dismissal of several public agents occupying positions highlighted in the theme on the protection of the environment. In conclusion, it remains evident that Brazil is in a real state of affairs unconstitutional in environmental matters, with massive actions and omissions responsible for the unsustainable exploitation of environmental resources, resulting in the necessary performance of the Supreme Court as a Constitutional Court responsiblefor pointing out the actions and the respective inspection of their achievements.

Differentiated Human Rights of Migrant Spouses Based on Nationalities in Taiwan

2018 ◽  
Vol 19 (2) ◽  
pp. 81-112
Author(s):  
Te-Yuan Chien
Keyword(s):  
The United States ◽  
The Political ◽  
Constitutional Court ◽  
International Treaties ◽  
Political Issues ◽  
Chinese Exclusion ◽  
The Supreme Court ◽  
The Difference ◽  
Exclusion Act ◽  
To Receive

In Taiwan, there were 530,512 migrant spouses in 2017 and, among them, 337,838 (about 63.7 per cent) came from China. However, Chinese spouses have to spend two years more than other foreign spouses to receive residency. Due to the political complexities between China and Taiwan, this differentiated treatment is a controversial issue. Nevertheless, some advocates have urged legislators to propose amendments, whereas others support raising the issue in the Constitutional Court.This article contends that the period it takes for Chinese and other foreign spouses to receive residency should be equal. Furthermore, the article suggests that it is more suitable for the legislative branch to use its plenary power in dealing with the political issues than the judicial branch, similar to how the United States (us) resolved disputes after the enactment of the Chinese-Exclusion Act 130 years ago.This article begins with the political and legal background to the differentiated treatment issue in Taiwan. The second part begins with the bills in Congress to eliminate the difference and outlines the interpretation of the Constitutional Court in Taiwan regarding the Chinese issues. The third part discusses the similar discriminatory treatment of the Chinese in the us after the Chinese-Exclusive Act in 1882 and how the Supreme Court dealt with those disputes. Finally, considering international treaties and the sensitivity of the political issues, this article suggests, similar to the us approach, introduction of the doctrine of plenary congressional power and the political question doctrine to resolve the disputes.

scholarly journals Haldane Unrevealed

2012 ◽  
Vol 57 (3) ◽  
pp. 597-626
Author(s):  
David Schneiderman
Keyword(s):  
Decision Making ◽  
Review Essay ◽  
Historical Context ◽  
The Political ◽  
Supreme Court Of Canada ◽  
Intellectual Biography ◽  
Privy Council ◽  
Clear Preference ◽  
Division Of Powers ◽  
Canadian Federalism

When historians proffer historical truths they “must not merely tell truths,” they must “demonstrate their truthfulness as well,” observes Hackett Fisher. As against this standard, Frederick Vaughan's intellectual biography of Richard Burdon Haldane does not fare so well. Vaughan argues that Viscount Haldane’s jurisprudential tilt, which favoured the provinces in Canadian federalism cases before the Judicial Committee of the Privy Council, was rooted in Haldane’s philosophizing about Hegel. He does so, however, without much reference to the political and legal currents within which Haldane thought, wrote, and thrived. More remarkably, Vaughan does not derive from his reading of Haldane and Hegel any clear preference for the local over the national. We are left to look elsewhere for an explanation for Haldane’s favouring of the provincial side in division-of-powers cases. Vaughan additionally speculates about why Haldane’s predecessor Lord Watson took a similar judicial path, yet offers only tired and unconvincing rationales. Vaughan, lastly, rips Haldane out of historical context for the purpose of condemning contemporary Supreme Court of Canada decision making under the Charter. Under the guise of purposive interpretation, Vaughan claims that the justices are guilty of constitutionalizing a “historical relativism” that Vaughan wrongly alleges Hegel to have propounded. While passing judgment on the book’s merits, the purpose of this review essay is to evaluate the book by situating it in the historiographic record, a record that Vaughan ignores at his peril.

scholarly journals The Return of Federalism and Constitutional Politics: Analyzing the Role of the Supreme Court as an Arbiter in Contemporary Political Society

Federalism-E ◽  
1969 ◽  
Vol 14 (1) ◽  
pp. 5-20
Author(s):  
Marjun Parcasio
Keyword(s):  
Supreme Court ◽  
The Political ◽  
Political Society ◽  
Constitutional Politics ◽  
Constitutional Order ◽  
The Past ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Death Experience

Since the ascendancy of the Charter of Rights and Freedoms as the centrepiece of a new constitutional order in Canada, there has been a distinctive decline of federal discourse in the courts and within the political sphere. Traditional cases pertaining to the division of powers at the Supreme Court have been eclipsed by the novelty of rights jurisprudence that has consumed the court in the past three decades1. Moreover, constitutional issues have been considered an anathema since the failure of the negotiations at Meech Lake and Charlottetown, exacerbated by the near-death experience for federalism in the 1995 referendum in Québec. In recent years, however, the changing nature of Canada’s political dynamics has signalled a return of federalism and constitutional politics [...]

scholarly journals Comentario de los autos del Tribunal Supremo de 17 de octubre y 6 y 27 de noviembre de 2014, relativos a la ley de consultas populares y la «consulta popular no referendaria sobre el futuro político de Cataluña»

2016 ◽  
pp. 595
Author(s):  
Estela Gilbaja Cabrero
Keyword(s):  
Supreme Court ◽  
Central Government ◽  
The Political ◽  
Constitutional Court ◽  
Regional Government ◽  
The People ◽  
The Supreme Court ◽  
The Right

El Parlamento catalán aprobó en 2014 una Ley de consultas populares. Anteriormente, en 2013, había aprobado una Declaración de soberanía y del derecho a decidir del pueblo de Cataluña. Basándose en los citados documentos, el Presidente de la Generalitat convocó una «consulta popular no referendaria sobre el futuro político de Cataluña», que tendría lugar el 9 de noviembre de 2014. No se llegó a celebrar porque el Tribunal Constitucional decretó su suspensión, ya que el Gobierno había impugnado ante él la Ley, la Declaración y el Decreto de Convocatoria. La Generalitat, una asociación y dos particulares entendieron que los recursos del Gobierno fueron una intromisión en los derechos de los catalanes y acudieron al Tribunal Supremo. El presente trabajo estudia los Autos del Tribunal Supremo que les dan respuesta.Catalan Parliament approved in 2014 a Popular Enquiry Act. Previously, in 2013, they had approved a Declaration of Sovereignty and the right to decide of the people of Catalonia. Based on these documents, the President of the regional Government called to a «non-referendum popular enquiry about the political future of Catalonia», which would be held on November 9, 2014. It did not get to celebrate because the Constitutional Court ordered its suspension, as the central Government had impugned the Act, the Declaration and the Decree calling for the enquiry. The regional Government, an association and two people thought those impugnations were an intrusion on the Catalans’ rights and went before the Supreme Court. This paper studies the reply of the Supreme Court.

Constitutional Law in 1920–1921. I: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1920

1922 ◽  
Vol 16 (1) ◽  
pp. 22-40
Author(s):  
Edward S. Corwin
Keyword(s):  
Freedom Of Speech ◽  
The United States ◽  
The Political ◽  
Political Scientist ◽  
Final Solution ◽  
The Supreme Court ◽  
Eighteenth Amendment ◽  
National Power ◽  
Constitutional Decisions ◽  
Preceding Term

The work of the court last term is chiefly notable for its amplification of certain important results of the preceding term. Thus, the final objection to the validity of the Eighteenth Amendment was refuted; the last great question touching the meaning of the word “income” in the Sixteenth Amendment was answered; the emergency powers of government in war time were brought into contact with more usual sources of public authority—this in the rent law cases; and some minor phases of the problem of freedom of speech and press were disposed of. However, in two cases, both of much interest to the political scientist, somewhat novel questions of national power were raised; and in neither was a certainly final solution offered. Questions of state power were again of decidedly subordinate significance and interest.

scholarly journals Watertight Compartments: Getting Back to the Constitutional Division of Powers

2017 ◽  
Author(s):  
Asher Honickman
Keyword(s):  
Supreme Court ◽  
Modern Trend ◽  
Privy Council ◽  
Mutual Exclusivity ◽  
Stare Decisis ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Degree Of Overlap

This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres — what the Privy Council once termed “watertight compartments.” This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme — particularly incidental effects, genuine double aspects, and limited ancillary powers — overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text.

The House of Lords and women's rights or Am I really a Law Lord?

Legal Studies ◽  
2005 ◽  
Vol 25 (1) ◽  
pp. 72-84 ◽  
Author(s):  
Keyword(s):  
Supreme Court ◽  
United States Supreme Court ◽  
The United States ◽  
Constitutional Court ◽  
Court Decisions ◽  
Privy Council ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998

The general theme of this lecture was prompted by Ruth Bader Ginsburg, the second woman in the United States Supreme Court. To celebrate my appointment she sent me a fascinating book, Supreme Court Decisions and the Rights of Women. This set me thinking about what a similar book on House of Lords Decisions and the Rights of Women might have to say. My first thought was ‘not a lot, surely’. The two courts are very different. The Supreme Court is a constitutional court under a constitution which guarantees the equal protection of the laws. The appellate committee of the House of Lords is not a constitutional court, although the Human Rights Act 1998 has made it look a little more like one. The judicial committee of the Privy Council, however, has in practice the same composition as the House of Lords.

Dialogues

2020 ◽  
Vol 2 (4) ◽  
pp. 55-60
Author(s):  
Barbara E. Mundy
Keyword(s):  
Latin America ◽  
The Political ◽  
Section Deal ◽  
English Speaking ◽  
English Speaking World ◽  
Central Claim

This collection of essays reconsiders a seminal 1961 article by George Kubler, the most important art historian of Latin America of the English-speaking world at the time of its writing. Often greeted with indifference or hostility, Kubler’s central claim of extinction is still a highly contested one. The essays in this section deal with Kubler’s reception in Mexico, the political stakes of his claim in relation to indigeneity, as well as the utility of Kubler’s categories and objects of “extinction” beyond their original framing paradigm.

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