The High Court on Constitutional Law: The 2016 and French Court Statistics

2017 ◽  
Vol 40 (4) ◽  
Author(s):  
Andrew Lynch ◽  
George Williams
Keyword(s):  
Constitutional Law ◽  
High Court ◽  
French Court

scholarly journals The Narrative Model of Constitutional Implications: A Defence of Roach v Electoral Commissioner

2019 ◽  
Author(s):  
Jonathan Crowe
Keyword(s):  
Constitutional Law ◽  
Social Practices ◽  
Court Decisions ◽  
High Court ◽  
Fictional Narratives ◽  
Narrative Model ◽  
Way Of Thinking ◽  
Relationship Of ◽  
The Relationship

The role of implications in Australian constitutional law has long been debated. Jeffrey Goldsworthy has argued in a series of influential publications that legitimate constitutional implications must be derived in some way from authorial intentions. I call this the intentionalist model of constitutional implications. The intentionalist model has yielded a sceptical response to several recent High Court decisions, including the ruling in Roach v Electoral Commissioner that the Constitution enshrines an implied conditional guarantee of universal franchise. This article outlines an alternative way of thinking about constitutional implications, which I call the narrative model. I argue that at least some constitutional implications are best understood as arising from historically extended narratives about the relationship of the constitutional text to wider social practices and institutions. The article begins by discussing the limitations of the intentionalist model. It then considers the role of descriptive and normative implications in both factual and fictional narratives, before applying this analysis to the Australian Constitution. I argue that the narrative model offers a plausible basis for the High Court’s reasoning in Roach v Electoral Commissioner.

Unlocking the Legal Deadlock over Dreadlocks in Kenyan Schools: Constitutional Law, Rastafarians, and Religious Freedom

2020 ◽  
Vol 9 (2) ◽  
pp. 388-403
Author(s):  
Brian Sang YK
Keyword(s):  
Secondary School ◽  
Constitutional Law ◽  
Religious Freedom ◽  
Right To Education ◽  
High Court ◽  
Crucial Step ◽  
Context Sensitive ◽  
Legal Implications ◽  
School Rules ◽  
Religious Reasons

Abstract Legal recognition of Rastafari as a religion is a crucial step in enabling its adherents to enjoy the full scope of their religious freedom. This article considers and critiques the legal implications of the High Court of Kenya’s decision in JWM (alias P) v Board of Management O High School. In JWM, the headteacher of a secondary school decided that a Rastafarian girl who wore dreadlocks for religious reasons should be excluded from the school and only be readmitted once she had cut them as her hairstyle breached school rules. The High Court concluded that this was a violation of the student’s right to education and religious freedom. Though welcoming the JWM verdict as legally correct, this article reflects critically on how the Court arrived at its conclusion. It reviews the High Court’s reasoning in JWM and offers a constructive analysis of the likely effect of JWM on Kenyan education institutions and their uniform policies. The article advocates the need for principled, context-sensitive and methodical approaches to adjudicating freedom of religion claims so as to protect the rights of religious believers and secularists alike.

“The Dilemma to a Free People”: Justice Robert Jackson, Walter Bagehot, and the Creation of a Conservative Jurisprudence

2002 ◽  
Vol 20 (3) ◽  
pp. 517-539 ◽  
Author(s):  
Patrick Schmidt
Keyword(s):  
Twentieth Century ◽  
Cold War ◽  
Free Speech ◽  
Constitutional Law ◽  
Historical Context ◽  
High Court ◽  
The Cold War ◽  
Free Speech Rights ◽  
Free People ◽  
The U.S

Even today, the U.S. Supreme Court's decision in Terminiello v. City of Chicago (1949) strikes students of constitutional law as a vexing factual situation. The problems the case posed for the High Court are all the more daunting considering its historical context, directly following the nation's confrontation with Nazism and standing on the cusp of the Cold War against Communism. In the broader view, most observers would locate the decision within the ascendance of liberal protection for free speech rights occurring over the second half of the twentieth century. But progressive accounts should not be allowed to mask the contemporary momentousness for the justices hearing the case. Indeed, in this constitutional conflict over the speech of a rabble-rousing priest was lodged a sober question about the polity's health at that time and the preferred response to the nation's need.

Centenary of HM Seervai – Doyen of Indian constitutional law – an Australian appreciation

Legal Studies ◽  
2007 ◽  
Vol 27 (3) ◽  
pp. 361-378
Author(s):  
Michael Kirby
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Fourth Edition ◽  
High Court ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Judicial Authority

For much of the second half of the twentieth century, HM Seervai was a leading advocate of the Bombay High Court. He argued some of the most important constitutional cases decided by the Supreme Court of India and eventually resolved in 1970 to write his Constitutional Law of India. It became the leading text on Indian constitutional law. It is still in widespread use. Many instances of recent citations are quoted. But it is not the usual commentary on the text of the Indian constitutional and case law. Instead, the book contains a running discussion on the shifts in direction as well as sharp criticisms where Seervai felt that the courts had strayed from correct constitutional doctrine. Seervai died in 1996 as the fourth edition was just completed. In this paper, originally given as a lecture in Mumbai in 2007 on the centenary of Seervai’s birth, the author questions Seervai’s testamentary prohibition on posthumous editions of his text. He urges that a new edition should be produced to keep Seervai’s legacy alive not only in India but in other constitutional democracies where Indian judicial authority is increasingly cited.

scholarly journals Democratic Fundamentals in the Solomon Islands: Guadalcanal Provincial Assembly v The Speaker of National Parliament

1997 ◽  
Vol 27 (3) ◽  
pp. 501
Author(s):  
Jennifer Corrin Care
Keyword(s):  
Constitutional Law ◽  
Solomon Islands ◽  
Case Note ◽  
Provincial Government ◽  
The Political ◽  
High Court ◽  
National Parliament

This article is a case note of Guadalcanal Provincial Assembly v The Speaker of National Parliament and the Minister for Provincial Government unreported, High Court, Solomon Islands, cc 309/96, 26 February 1997. The decision is a constitutional law case from the Solomon Islands filed by the applicant in response to the passing of the Provincial Government Act 1996. The author first introduces the political framework of the Solomon Islands, and then discusses the decision itself. The author then comments on the decision: first on the interpretation of the Constitution of the Solomon Islands, secondly on the role of Chiefs and Elders, and finally on the changes in the bench. 

scholarly journals The High Court on Constitutional Law: The 2019 Statistics

2020 ◽  
Author(s):  
Andrew Lynch
Keyword(s):  
Decision Making ◽  
High Frequency ◽  
Constitutional Law ◽  
Distinctive Features ◽  
High Court ◽  
Chief Justice

This article presents data on the High Court’s decision-making in 2019, examining institutional and individual levels of unanimity, concurrence and dissent. It points out distinctive features of those decisions – noting particularly the high frequency of both seven- member benches and the number of cases decided by concurrence over 2019. The latter suggests the possibility of greater judicial individualism re-emerging on the Court despite the clear endorsement of the ‘collegiate approach’ by Chief Justice Kiefel and its practice in the first two years of her tenure as the Chief Justice. This article is the latest instalment in a series of annual studies conducted by the authors since 2003.

The High Court of Malawi as a constitutional court: constitutional adjudication the Malawian way

2020 ◽  
Vol 24 ◽  
Author(s):  
Mwiza Jo Nkhata
Keyword(s):  
Constitutional Law ◽  
Constitutional Court ◽  
Constitutional Review ◽  
High Court ◽  
Criminal Matters ◽  
Constitutional Adjudication

ABSTRACT Constitutional adjudication in Malawi only became commonplace after the adoption of a new Constitution in 1994. Like many Anglophone countries, Malawi follows the decentralised model of constitutional adjudication. Under this arrangement, the High Court has unlimited original jurisdiction to hear any civil or criminal matters, including constitutional matters. The Courts Act, however, requires the High Court to sit with an enhanced quorum when it is seized of cases that substantively relate to, or concern the interpretation and application of the Constitution. It is when the High Court sits with a reconfigured quorum that it is popularly referred to as the "constitutional court" (the Court). This article analyses constitutional adjudication in Malawi by focusing on the operation of the Court. Specifically, it analyses the scope of the Court's jurisdiction, the type of constitutional review that it conducts, the regulation of access to the Court, the forms of decisions and remedies that it grants, and the Court's independence. Keywords: constitutional law, constitutional adjudication, High Court of Malawi.

Remedying Misaligned Norms in International and Constitutional Law: Investment Treaties, Property Rights and Proportionality

2020 ◽  
Author(s):  
Jarrod Hepburn
Keyword(s):  
Decision Making ◽  
Property Rights ◽  
International Law ◽  
Constitutional Law ◽  
High Court ◽  
International Tribunals ◽  
Investment Treaties

The enlargement of the scope of international law has led to more frequent overlaps in the substantive rules of domestic and international law. One such overlap is in the rules on expropriation, or the protection of property rights. This article argues that Australian constitutional law and international law are misaligned on the question of expropriation, with international law generally imposing a higher standard of protection compared to the Australian Constitution. The article contends that this misalignment matters, because it is irrational and discriminatory, and because it hinders Australia’s compliance with international law by increasing the complexity of official decision-making. The article then considers whether and how the misalignment can be remedied. Although a deliberate re-alignment faces difficulties, the article concludes that a form of alignment may organically emerge for other reasons, as both international tribunals and the Australian High Court take tentative steps towards the use of proportionality to resolve property rights claims.

Diminishing constitutional law: The first three decades of women’s exclusion adjudication in Israel

2020 ◽  
Author(s):  
Yofi Tirosh
Keyword(s):  
Constitutional Law ◽  
Ad Hoc ◽  
Legal Framework ◽  
Constitutional Rights ◽  
High Court ◽  
The Past ◽  
Sex Equality ◽  
Definition Of ◽  
The Right ◽  
Constitutional Adjudication

Abstract Balancing between sex equality and religious interests has been a challenge for Israel’s constitutional law from the state’s inception. In recent years, however, the expanding repertoire of practices known as women’s exclusion has brought forth this tension with new formulations, intensity, and public sensitivity. This article maps the three decades of Israel’s High Court of Justice (HCJ or “the Court”) adjudication on women’s exclusion. The modesty requirements and sex-based physical segregation that have become rampant in Israel require re-articulations of the scope and status of the right to equality, as well as other constitutional rights such as dignity and liberty. The thirty-year database compiled for the purpose of this article encompasses all women’s exclusion cases decided by the HCJ. The database was built based on an annotated definition of women’s exclusion cases as a legal field, developed and explained in this article. The database reveals what might be defined as diminishing constitutional adjudication. In the 1990s, the Court labored in elevating sex equality, developing a doctrinal structure that guards it against religion-based demands to legitimize exclusion norms. In contrast, in the past decade, the Court has almost completely refrained from reviewing cases on merit or writing reasoned opinions, adopting ad-hoc problem-solving approaches or taking dispute resolution approaches prompting the parties to find compromise, without delineating the legal framework that should guide the disputes.

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