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I·CONnect

Blog of the International Journal of Constitutional Law

I-CONnect Symposium on “The Legacy of Chief Justice Beverley McLachlin”–Part III: Chief Justice McLachlin, Collective Religious Freedom Rights, and the Space for Religion within the Rule of Law

[Editor’s Note: This is the third entry in our symposium on “The Legacy of Chief Justice Beverley McLachlin.” We are grateful to our six symposium participants for their contributions to this special series of reflections on Canada’s retiring Chief Justice. The introduction to our symposium is available here. Part I of our symposium is available here and Part II is available here.]


Howard Kislowicz, Assistant Professor, Faculty of Law, University of Calgary

Two of Chief Justice McLachlin’s opinions highlight an ongoing tension in the religious freedom debates: whether such religious freedom rights can be held collectively and/or by institutions. In the first case, Hutterian Brethren,[1] Chief Justice McLachlin appeared to minimize the collective religious freedom claim of a religious group known for its communitarian worldview. In the second case, Loyola,[2] Chief Justice McLachlin co-authored a concurring minority view that took the collective aspects of religious freedom so seriously that it set out a framework for analyzing the religious freedom claims of institutions. In what follows, I focus in more detail on the differences in approach of these two cases. I conclude by noting that one reason the collective/individual question is so fraught is because admitting of a collective right is, in a sense, a cession of some jurisdiction of the state. As suggested by a scholarly essay of the Chief Justice, the state’s preference is to make room “within the rule of law” for religious diversity while retaining its ultimate authority.

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Published on December 6, 2017
Author:          Filed under: Analysis
 

Developments in Finnish Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Finnish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Laura Kirvesniemi, PhD student, University of Helsinki; Milka Sormunen, PhD student, University of Helsinki; Tuomas Ojanen, Professor of Constitutional Law, University of Helsinki

I. Introduction

The year 2016 was unprecedented, even tumultuous, in terms of constitutional law and human rights in Finland. Several reasons – immigration with the flood of asylum applications,[1] the country’s economic problems and problems related to the quality of law-making and the desire by the sitting Government to catch up with the ‘reform debt’ as much as possible in the current electoral term—coalesced to explain constitutional turbulence during 2016.

In addition, some legislative proposals by the Government deliberately tested the extreme limits of the Constitution and human rights treaties, particularly in the field of asylum legislation, where the Government wanted to diminish Finland’s (alleged) appeal to asylum seekers. Such a ‘race-to-the-bottom’ is in contrast to an earlier approach by the Finnish legislature that has even involved efforts to bend the domestic implementation of EU law to secure the effective protection of fundamental and human rights.[2]

This report provides an overview of practice by the Constitutional Law Committee of Parliament and the case law of the highest courts: the Supreme Court and the Supreme Administrative Court. The necessity to take notice of the Constitutional Law Committee alongside the Courts owes to the existence of a pluralist system of constitutional review in which the primary role is played by abstract ex ante review of legislation by the Committee whereas concrete ex post review by the Courts assumes a secondary role.

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Published on December 6, 2017
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I-CONnect Symposium on “The Legacy of Chief Justice Beverley McLachlin”–Part II: Dissent and Empathy: Hallmarks of a Complex Judicial Personality

[Editor’s Note: This is the second entry in our symposium on “The Legacy of Chief Justice Beverley McLachlin.” We are grateful to our six symposium participants for their contributions to this special series of reflections on Canada’s retiring Chief Justice. The introduction to our symposium is available here. Part I of our symposium is available here.]

Jamie Cameron, Osgoode Hall Law School

The festschrifts for retiring Chief Justice Beverley McLachlin that are now underway will continue apace in the months ahead.  Though far from easy, commenting on a moment or two from a legacy that is unimaginably rich can be done.  Judicial personality is the frame for this comment. Over the years, the Chief Justice has been presented as a pragmatic jurist who is committed to evidence-based decision making. Yet as only a short discussion reveals, a more complex dynamic is at work.

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Published on December 5, 2017
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Adjudicating ‘Honesty’: Prime Minister(s) and the Supreme Court of Pakistan (I-CONnect Column)

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

Menaka Guruswamy, Advocate, Supreme Court of India and B R Ambedkar Research Scholar and Lecturer, Columbia Law School

In 2016, when 11.5 million records were leaked from the Panama based law firm of Mossack Fonseca, they revealed a long list of the wealthy and influential who stash their money in offshore companies – including then Prime Minister Nawaz Sharif and his family. Soon enough using the Panama papers, Imran Khan, Pakistan’s flamboyant former cricket captain and leader of the Pakistan Movement for Justice party, filed a petition at the Supreme Court of Pakistan   In Imran Ahmed Khan v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan, the petitioners asked for dismissal of the Prime Minister, arguing that Sharif and his family had assets disproportionate to their income, contradictory to regulatory declarations, and thereby that Sharif was not honest and ‘ameen’ or trustworthy/faithful.[1]  The Supreme Court of Pakistan was once again asked to adjudicate the honesty of a Prime Minister.

Article 62 (1) (f) of the Constitution of the Islamic Republic of Pakistan, 1973 mandates that a person shall not be qualified to be elected to the Majlis-e-Shoora (Parliament) where there is declaration by a court of law of him not being sagacious, righteous and non-profligate, honest and ameen..[2] This constitutional provision is a remnant from the days of General Zia-ul-Haq who seized power through a military coup in 1978 and remained President till his death in a mysterious plane crash in 1988. Surprisingly, civilian political parties chose to retain this provision, despite the 1973 Constitution arrived at by political consensus.  This is even more puzzling given the acrimonious and contentious relationship that the Supreme Court has traditionally enjoyed with elected Prime Ministers and their governments.

While the Court has been quite accommodating of military coups, most (in)famously in the 1950s in State v Dosso when it justified a military coup arguing that ‘when a revolution is victorious…then it becomes a law creating fact,’[3]  it has not been that accommodating of elected Prime Ministers. In 1977, Prime Minister Zulfiqar Ali Bhutto was imprisoned on highly dubious charges of murder, at the behest of by Zia-ul-Haq, the Chief of Staff of the Army, who quickly declared martial law. Bhutto’s wife, Begum Nusrat Bhutto, filed a petition before the Supreme Court challenging her husband’s detention under martial law.[4] The Court not only found the military coup to be legal, but also did not prevent the execution of the Prime Minister.

If in the founding decades of Pakistan, the Court relied on the legality of the victorious revolution, in contemporary times, the Court uses a series of constitutional provisions, including Article 62 (1) (f) and, notably, Article 184 (3) to remain, in the words of Moeen H. Cheema, ‘deeply and structurally political’.[5]  Article 184 (3) enables the Court to intervene and pass orders when a question of public importance exists with reference to the enforcement of fundamental rights – often at the cost of the executive.

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Published on December 5, 2017
Author:          Filed under: Developments
 

I-CONnect Symposium on “The Legacy of Chief Justice Beverley McLachlin”–Part I: Reflecting a Chief Justice

[Editor’s Note: This is the first entry in our symposium on “The Legacy of Chief Justice Beverley McLachlin.” We are grateful to our six symposium participants for their contributions to this special series of reflections on Canada’s retiring Chief Justice. The introduction to our symposium is available here.]

Eric Adams, University of Alberta, Faculty of Law

Reflecting on the legacy of Chief Justice Beverley McLachlin’s remarkable tenure at the Supreme Court of Canada presents a daunting task. Always laudably difficult to pigeon-hole politically, her immense and (on any accounting) impressive corpus of judgments covering nearly three decades at the Court is as complex and multi-faceted as the pluralistic country it seeks to govern.

Despite that diversity, there are discernible threads that bind her jurisprudence together, certainly in the field of constitutional law. In the main, McLachlin, CJ approached the Canadian Charter of Rights and Freedoms as an instrument of Canadian legal liberalism: a calibrated, contextual, and careful blend of concern for individual rights and freedoms explicitly balanced against the proportionate limitations of state interests. Just prior to her appointment to the Supreme Court in 1989, McLachlin, J candidly acknowledged that such balancing “is essentially a judgment of a political rather than judicial nature. The answer cannot be determined by logic or by stare decisis …. the answer resides ultimately in the values of the court deciding the case.”[1]

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Published on December 4, 2017
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What’s New in Public Law

Nausica Palazzo, Ph.D. researcher in Comparative Constitutional Law (University of Trento)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. Bolivia’s Constitutional Court allows President Morales to run for a fourth term.
  2. The U.S. Supreme Court hears arguments in historic privacy case on cellphone tracking.
  3. The Federal Constitutional Court of Germany rules tariff increase for prisoners’ phone calls unconstitutional.
  4. The Supreme Court of Canada finds in favor of the Yukon First Nations in Peel watershed suit.
  5. The Constitutional Court of South Africa held unconstitutional the rules on temporary shelter of the City of Johannesburg.
  6. The Constitutional Court of Georgia has decriminalized consumption of marijuana.

Special Announcement: Version 4.0 of Constitute

The Comparative Constitutions Project announces the roll-out of an updated and enriched version of Constitute, a world-wide database of constitutions. Although Constitute was built for drafters and others in the Constitutions “business,” the 4.0 version moves the project closer to the ordinary citizen, “which is where a Constitutional project should live.”

The revision introduces an expanded set of constitutional texts and a host of new features that give users more control over their experience. A selected set of draft and historical constitutions is now available, along with a new log-in feature, and more.

In the News

  1. The President of Kenya was sworn in after controversial (re)elections.
  2. The Zimbabwe High Court rules military takeover constitutional.
  3. China’s Tourism Bureau orders to strike Vatican off touristic itineraries.
  4. The U.S. Senate has approved a controversial tax bill.
  5. U.S. withdraws from the UN Global Compact on Migration.
  6. The president of Ecuador announces a referendum to restore presidential term-limits.
  7. South Korea has launched a survey to examine whether it should legalize abortion.
  8. The State Secretary of Germany declares that Germany may need constitutional amendments to address the targeting of private computers by hackers.

New Scholarship

  1. Antonia Baraggia, Challenges in Comparative Constitutional Law Studies: Between Globalization and Constitutional Tradition. Special Issue – Comparative Law, Law and Method (October, 2017) (addressing the main contemporary methodological challenges faced by the studies of comparative constitutional law, including integrating the classical “horizontal” comparative method with a vertical one, and fostering an interdisciplinary approach)
  2. Maja Sahadzic, Constitutional Asymmetry vs. Sovereignty and Self-Determination, Sui Generis (2017) (providing an alternative approach to autonomy claims, in the context of the right to self-determination)
  3. Bui Ngoc Son, The Law of China and Vietnam in Comparative Law, 41 Fordham International Law Journal 1 (2017) (placing the law of China and Vietnam in mainstream comparative law by examining their multiple layers of law, strategic accommodation of the rule of law, and two distinctive legal systems, namely the Confucian Legal system and the socialist legal system)
  4. Mario Alberto Cajas-Sarria, Judicial Review of Constitutional Amendments in Colombia: A Political and Historical Perspective, 1955-2016, 5 Journal Theory and Practice of Legislation 1 (2017) (examining the judicial review of constitutional amendments, and the interdependence between the political context and the doctrines of both the Supreme Court and Constitutional Court)
  5. Athanasios Psygkas, From the “Democratic Deficit” to a “Democratic Surplus”: Constructing Administrative Democracy in Europe (Oxford University Press, 2017) (examining the role of the EU in increasing the accountability of national regulatory agencies and in building an “administrative democracy”)
  6. Daniel Halberstam & Christopher McCrudden, Miller and Northern Ireland: A Critical Constitutional Response, 8 UK Supreme Court Yearbook (2017) (assessing critically the devolution aspects of the UK Supreme Court’s judgment in Miller, concerning the use of the royal prerogative to trigger Article 50 TEU)
  7. Harry T. Edwards, Collegial Decision Making in the U.S. Courts of Appeals, NYU School of Law, Public Law Research Paper No. 17-47 (outlining the decision-making process of the U.S. Court of Appeals and explaining how it differs from that of the U.S. Supreme Court)

Calls for Papers and Announcements

  1. The Foundation for Law, Justice and Society invites you to the lecture on “Political Instability and Constitutional Instability in Latin American States,” by Prof. Christopher Thornhill at the Wolfson College, Oxford, on December 7, 2017.
  2. The second issue of the “Rivista di Diritti Comparati” is now available.
  3. The latest issue of the Think Tank Review compiled by the EU Council Library is now available.
  4. The ECPR’s Standing Group on the European Union invites scholars to its annual SGEU conference on “Contradictions – Whither the Political, Economic and Social Integration of Europe?,” to be held in Paris, on June 13-15, 2018.
  5. The University of Michigan welcomes submissions from junior scholars to participate in the 4th Annual Junior Scholars’  Conference. The conference will be held on April 13–14, 2018, in Ann Arbor, Michigan. The deadline to submit abstracts is January 8, 2018.
  6. Applications are open for submissions to participate in the workshop #22 “Internet in the Age of Ordinary Terrorism”, coordinated by professors Giovanna De Minico and Oreste Pollicino at the 10th World Congress of Constitutional Law (2018 IACL-AIDC), that will take place in Seoul on June 18-22, 2018.
  7. The PhD in Law Association Rotterdam (PILAR) invites submissions for the Erasmus Early-Career Scholars Conference to be held on April 11-13, 2018, in Rotterdam. Abstracts must be sent by by January 7, 2018.
  8. The Law Faculty of the McGill University invites application from exceptional scholars and professionals in the fields of comparative law and Asian legal cultures for the position of Li Ka Shing Visiting Professor of Practice – 2018-2019. The deadline is January 5, 2018.
  9. York University, Glendon College is seeking to fill the position of Full Time Tenure Stream – Assistant Professor in International Law. The application deadline has been extended to January 15, 2018.
  10. The Escola Superior de Direito Eleitoral organizes the “I Simpósio Internacional de Direito Eleitoral e Político: desafios para o exercício da democracia nas cidades e no mundo,” to be held next December 13-15, 2017 in Rio De Janeiro.
  11. The Asser Institute hosts the “Human Dignity and Human Security in Times of Terrorism Conference,” to be held next December 14, 2017 in The Hague.

Elsewhere Online

  1. Wojciech Sadurski, Judicial “Reform” in Poland: The President’s Bills are as Unconstitutional as the Ones he Vetoed, Verfassungsblog
  2. Marko Milanovic, Some Thoughts on the Mladic Judgment, EJIL: Talk!
  3. Andrea Pin, The New Italian Election Law: A Temporary Solution for an Endless Transition?, Dpce
  4. Judy Dempsey, Can Northern Ireland Be Kept in the EU?, Carnegie Europe
  5. Eugene Volokh, A constitutional right to discriminate?, The Volokh Conspiracy
  6. Charles Ngwena, Where is democracy? Reflections on the ascendancy of Mnangagwa as president of Zimbabwe, AfricLaw
  7. Jess Sargeant, Referendums in UK democracy: how should they work in practice?, The Constitution Unit
  8. Sioudina Mandibaye Dominique, Constitutional reforms in Chad: Edging towards federalism?, Constitutionnet
  9. Ravi Amarnath, Landmark human rights decision to be heard by the Supreme Court of Canada, OxHRH Blog
  10. Andy Grewal, The President’s Absolute Immunity for Unlawfully Firing a Subordinate, Notice and Comment
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Published on December 4, 2017
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I-CONnect Symposium on the Legacy of Beverley McLachlin, Chief Justice of Canada

Richard Albert, Boston College Law School

Earlier this year in June, the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, announced her retirement effective December 15, 2017.

This week–the week prior to her retirement–I-CONnect will host a special symposium in honor of Chief Justice McLachlin, for whom I had the privilege of serving as a law clerk after graduating from law school.

The symposium will feature contributions from six scholars: (1) Eric Adams (Alberta); (2) Jamie Cameron (Osgoode); Lawrence David (Harvard); (4) Howard Kislowicz (Calgary); (5) Pui Yin Lo (Hong Kong); and (6) Jenna Sapiano (St. Andrews).

Appointed to the Supreme Court in 1989 and elevated to Chief Justice in 2000, Beverley McLachlin will leave the Court as its longest-serving Chief Justice.

We thank our contributors for their participation in this special symposium.

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Published on December 3, 2017
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Developments in Nigerian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Nigerian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Solomon Ukhuegbe, Department of Public Law, University of Benin, Nigeria; Ph.D. (Osgoode Hall), Barrister; Chima Cletus Nweze, Justice, Supreme Court of Nigeria; Ph.D. (University of Nigeria)

I. Introduction[1]

The Supreme Court of Nigeria currently comprises the Chief Justice of Nigeria and sixteen other Justices. Although the statute of the Court envisages as many as twenty-one, the present size is the largest in the history of the Court. Recent Chief Justices have resisted further expansion of the bench. Compulsory retirement age is set by the Constitution at seventy,[2] but Justices may retire at sixty-five. Justices almost always serve out their tenure. Since 1999, for example, there has been only oneretirement before the age of seventy (illness). However, high membership turnover, because Justices mostly get appointed about the age of sixty (the average appointment age of the present bench is 59.5 years), means there are frequent vacancies on the bench. In 2016, membership turnover was about 20 percent. (Three Justices retired upon attaining seventy while four new Justices were appointed.) At present, only fifteen members are participating in the work of the Court due to recusal of two Justices because of corruption investigations.

The Supreme Court was established in 1956 (as the Federal Supreme Court) and was initially subject to the appellate jurisdiction of the United Kingdom’s Judicial Committee of the Privy Council, until 1963 when it became a final court of appeal in the Nigerian legal system. Nigeria has a two-tier appellate court structure comprising the Supreme Court and the Court of Appeal below it. During its sixty-year existence, 108 Justices have served on the Supreme Court. The current Chief Justice, Walter Onnoghen, the sixteenth, took office on 7 March 2017, although he had acted in that capacity since 10 November 2016 when the fifteenth Chief Justice retired. In 2016, there were four female Justices on the Court, the largest number ever. This is significant because only a half-dozen women have served on the Court, and the first appointment was only in 2005. However, women account for nearly a quarter of all appointments to the Court since that year.

The Court never sits en banc. It conducts most business in panels of five. However, seven Justices (‘Full Court’) are empanelled ad hoc by the Chief Justice for constitutional cases and for reconsideration of the Court’s precedents. In 2016, about 20 percent of all cases were heard by the Full Court, although this was rather peculiar as most of these were election-related (which usually involve constitutional issues) following the 2015 general elections in Nigeria. (In practice, the regular five-Justice panels sometimes also hear appeals raising constitutional issues, although it is not clear why this is so.) Every Justice on a panel is required to write an opinion in every case he participates in. This practice is a modified form of the seriatim opinions of English appellate courts because unlike the former, one Justice is assigned writing the primary opinion, which is circulated to other members of the panel. When the panel is split, the assignment is given to one of the majority Justices. Other Justices are required to write their own opinions as well, although frequently they are short concurring opinions, or even merely a statement aligning with the primary opinion. Dissents are rare. This strong consensus norm is, however, weakened by occasional dissensus on justification even where there is agreement on whether the appeal is allowed or refused. All judgments are read in open court.

The business of the Court is mainly private law (including commercial law), criminal law and civil procedure. While rights cases are uncommon, constitutional rights are sometimes considered in criminal appeals. That said, the Court’s output is low in rights jurisprudence, international law and social policy.

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Published on December 3, 2017
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Developments in Romanian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Romanian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Simina Elena Tănăsescu, Ph.D., Professor at the University of Bucharest, and Bianca Selejan-Guțan, Ph.D., Professor at the University of Sibiu

I. Introduction

In 2016, as well as in the last 15 years, the Romanian Constitutional Court’s case law remained at the core of the constitutional debate, especially as regards the enforcement of fundamental rights, but also the relationship between state powers. With a technocratic Government in place and political parties busy to reposition themselves on the political scene for the local elections in June and parliamentary ones in December, the year 2016 was quite paradoxical. Main controversies did not concern elections or parties, and the Romanian Constitutional Court (hereinafter RCC) continued to constitutionalize large portions of political life mainly by moralizing public officials and authorities.

II. The Constitution and the Court

The Romanian post-communist Constitution was adopted after the fall of the totalitarian regime in December 1989. The Constitution was approved by referendum in December 1991 and has been amended once, in 2003. Its text expresses the commitment of Romania to the principles of the rule of law, separation of powers, democracy, respect for fundamental rights and freedoms, and a market economy.[1] Ever since 1991, the country has struggled to give life to these principles. In 1993, Romania became a member of the Council of Europe, in 1994 the Parliament ratified the European Convention on Human Rights, and since 2007 it has been a member state of the European Union. Romania’s membership in the EU has been finalized under a supervisory process—the Cooperation and Verification Mechanism,[2] which initially targeted aspects pertaining to EU acquis together with problems related to the independence of the judiciary and currently addressed only these last ones, especially the irreversibility of anti-corruption policies. If in the field of independence of justice progress has been fast and notable, the fight against corruption, particularly against high-level corruption, remains a sensitive issue.

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Published on December 2, 2017
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Article Review: Aileen Kavanagh on Neil Duxbury’s Judicial Disapproval as a Constitutional Technique

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Aileen Kavanagh reviews Neil Duxbury’s article on Judicial Disapproval as a Constitutional Technique, which appears in the current issue of I•CON. Duxbury’s full article is available for free here.]

Aileen Kavanagh, University of Oxford

In a fascinating article published in the most recent issue of ICON, Professor Neil Duxbury considers ‘judicial disapproval as a form of non-binding review of the constitutionality of legislation.’[1] Taking the ‘declaration of incompatibility’ under the UK Human Rights Act 1998 (HRA) as the epitome of such a ‘judicial disapproval’ technique, Professor Duxbury shows that the idea of giving courts a formal power to declare legislation incompatible with rights (without allowing them to invalidate such laws) has an older vintage than we might have assumed.  Not only was the idea of a non-binding declaratory power mooted during the drafting history of the European Convention of Human Rights, Duxbury documents how similar ideas were given some credence in American constitutional thinking during the Revolutionary era and the early Republic.  Of course, the fact that this idea was mooted – but ultimately rejected – in these other contexts, may shore up the claim made by Stephen Gardbaum and others that the declaration of incompatibility is something of a constitutional novelty in the late 20th century – not as an idea or theoretical proposal, but as an innovation in constitutional design which was realised in practice.[2]  Either way, Duxbury’s nuanced historical picture repays further reading, and is a salutary reminder that there is a lot to learn from looking back, as we try to make sense of the present moving forward.

In this blog post, I want to pick up on some of the analytical or evaluative issues which arise from the intriguing idea of judicial disapproval as a constitutional technique.  Duxbury describes judicial disapproval ‘as a form of non-binding review of the constitutionality of legislation’.[3]  It arises when courts have the formal power to declare or ‘alert’[4] or ‘prompt’[5] or point out to the legislature that an enacted law is incompatible with a right.  The crucial point for Duxbury is that ‘disapproval is emphatically not repudiation’.[6]  Throughout the article, Duxbury contrasts ‘judicial disapproval’ with judicial invalidation or ‘judicial override’ of legislation on the other. As he puts it, when courts have the power to ‘disapprove’, they do not ‘control unreasonable laws by nullifying them, but rather do so by helping parliament to see when its laws ought to be repealed or altered’.[7]  Declaration is not invalidation.

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Published on November 29, 2017
Author:          Filed under: Reviews