Дисертації: "Role of constitutional courts"

1

Rahman, Shekh Mohammad Altafur Vitit Muntarbhorn. "The supreme court of Bangladesh : an analysis of its role in protecting human rights /." Abstract, 2004. http://mulinet3.li.mahidol.ac.th/thesis/2547/cd368/4637835.pdf.

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2

Crossland, James. "The role of the courts in the evolution of Canadian constitutionalism : historical antecedents and future prospects." Thesis, McGill University, 1987. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=66072.

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3

Buliga-Stoian, Minodora Adriana. "Institutional choices in uncertain times the role of organized groups in shaping political institutions /." Diss., Online access via UMI:, 2009.

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4

Scotford, Eloise A. K. "The role of environmental principles in the decisions of the European Union courts and New South Wales Land and Environment Court." Thesis, University of Oxford, 2010. http://ora.ox.ac.uk/objects/uuid:23d02748-1197-4f33-a6c6-b98fdbf7c5d1.

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The thesis is a comparative legal analysis of environmental principles in environmental law. Environmental principles are novel concepts in environmental law and they have a high profile in environmental law scholarship. This high profile is promoted by two factors – the high hopes that environmental law scholars have for environmental principles, and the increasing prevalence of environmental principles in legal systems, particularly in case law. This thesis analyses the latter, mapping doctrinal developments involving environmental principles in two jurisdictions and court systems – the courts of the European Union and the New South Wales Land and Environment Court. This doctrinal mapping has both narrow and broad aims. Narrowly, it identifies the legal roles in fact taken on by environmental principles within legal systems. Broadly, and building on this assessment, it responds to scholarly hopes that environmental principles (can) perform a range of significant roles in environmental law, including solving both environmental problems and legal problems in environmental law scholarship. These hopes are based on assumptions about environmental principles that have methodological weaknesses, including that environmental principles are universal and that they fit pre-existing models of ‘legal principles’ drawn from other areas of legal scholarship. The thesis exposes these methodological problems and concludes that environmental principles are not panaceas for pressing and perceived problems in environmental law. It does this by showing that the legal roles of environmental principles, which are significant in environmental law and its current evolution, can only be understood by closely analysing the legal cultures in which they feature. This is a conclusion for environmental law scholarship generally – while environmental issues and problems may be urgent and often global, legal analysis of the law that applies to those problems requires close engagement with legal systems and cultures, as they are and as they develop.

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5

Hasanat, Abul. "Enforcing the environment conservation act in Bangladesh: Role of legal institutions under statutory and constitutional laws." Thesis, Queensland University of Technology, 2021. https://eprints.qut.edu.au/212809/1/Abul_Hasanat_Thesis.pdf.

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This thesis examines the role of legal institutions in enforcing the Environment Conservation Act in Bangladesh. Applying the legal analytical method, it analyses in public law perspective how the Department of Environment, the High Court Division of Bangladesh Supreme Court, and the Special environmental courts enforce this law. The thesis argues that these legal institutions can enforce the law effectively if they adhere to the rule of law norms, particularly legitimacy, fairness, and justice in adopting environmental legal actions and measures. Effective enforcement of the law also requires strengthening of accountability systems to check breaches of such norms.

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6

Delaney, Erin Fielding. "Promoting federation : the role of a constitutional court in federalist states." Thesis, University of Cambridge, 2003. https://www.repository.cam.ac.uk/handle/1810/284024.

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Comparative studies of the European Union have been hampered by the fact that many political scientists treat the EU as a ‘sui generis’ entity, with no historical precedent or comparative example. Those who view the EU as something closer to a state than to an international organisation have struggled to find a workable definition encompassing the many, seemingly contradictory, aspects of the European system. This dissertation therefore begins by asserting the need for a new definition of the European Union, one that allows for comparison within a theoretical framework to advance our understanding of the EU and of its states in general. It then proposes a new definition, that of the ‘federalist state’ - a polity with some, but not all, of the hallmarks of a federation. A federalist state is not a federation, and it may not evolve into one; rather, it is a polity with a fundamental divide in its self-understanding. A broad consensus in the population does not exist on either the existence or the meaning of the critical elements of federation: the supremacy of the constitution; the role of the court; the relationship between the individual to the federal government; the right or, lack thereof, to secede; and even the meaning of federalism itself. The first part of this dissertation, Chapters I to III, will analyse these criteria for federation and demonstrate that the ante-bellum United States and the European Union can be classified as federalist states. The second part of the dissertation uses this theoretical framework to provide a foundation for a comparative analysis of the role of the constitutional court in each polity. In Chapters IV and V, the roles of the Supreme Court in the United States and the European Court of Justice in the European Union will be assessed and shown to be similar in effect: the public actions of the judges and their decisions in key constitutional cases demonstrate a consistent support for the elements of federation that are unresolved within the federalist state. Finally, the conclusion assesses some potential explanations for why the courts functioned as promoters of federation. In addition, it assesses the value of this theoretical framework for future comparative studies.

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7

MARTINEZ, BARAHONA Elena. "Seeking the Political Role of the Third Government Branch: A comparative approach to high courts in Central America." Doctoral thesis, European University Institute, 2007. http://hdl.handle.net/1814/7931.

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Defence date: 22 January 2007
Examining board: Prof. Pilar Domingo (Universidad de Salamanca) ; Prof. Carlo Guarnieri (Università di Bologna) ; Prof. Donatella Della Porta (European University Institute) ; Prof. Philippe C. Schmitter (European University Institute)(Supervisor)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
Until recently, Courts were not an important component of political science research on Latin America. The quantity of research on the judiciary does not compare even remotely to the vast literature on others institutions. However, despite the relative inattention to their role, courts are institutions whose performance has concrete and relevant effects on the socio-political system. Indeed, Courts have currently emerged as active participants in the political process offering new opportunities to citizens, social movements, interest groups, and politicians. Focusing on three countries of Central America (Costa Rica, Nicaragua and Guatemala), this dissertation illustrates how far the political system in these countries is shaped in significant ways by the role of Courts as political institutions. Throughout a comparative approach, this study offers what may be the first cross-national analysis explicitly designed to serve as a comprehensive measure of the political role of High Courts.

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8

Al-Dulaimi, Ahmed Oudah. "From Negative to Positive Legislator? Response to Unconstitutional Legislative Omission As a Case Study in the Changing Roles of Constitutional Courts." Thesis, Griffith University, 2018. http://hdl.handle.net/10072/381384.

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An important but challenging development appears to be occurring in the character of some constitutional courts—a shift from their traditional role as a negative legislator to a significant role as a positive legislator. Under this shift, a constitutional court is no longer confined to declaring the unconstitutionality of statutes if they are contrary to the constitution and simply annulling them, but rather takes on a positive power to create statute law. The case study examined here is the power to fill the gaps caused by unconstitutional legislative omissions (ULOs). Such a power authorises a constitutional court to declare what a missing law should contain, and to draft and promulgate that law, thus assuming the role of positive legislators by enacting temporary or provisional rules on specific matters. This development in the power of constitutional courts provokes vital questions. Why has such a role developed? What are its most important manifestations? What are the benefits and risks of such powers? Do the benefits outweigh the risks, and how might benefits be maximised and risks minimised? In response to these questions, this study provides a deeper understanding of the apparent shift in constitutional courts’ power from negative to positive legislator, and its implications for countries struggling with establishment and maintenance of democracy. The study applies lessons from international experience of powers to rectify ULOs in 17 countries, to examine whether such powers help address these challenges in more legal systems, and if so, how. It finds that some forms of such a power do have a positive contribution to make in response to serious constitutional challenges, but two things are required: a general recognition that the traditional understanding of a constitutional court as a purely negative legislator is no longer sufficient to explain and evaluate its role, once entrusted with such a power; and a new approach to the design of such a power, such as developed and applied in this thesis, which enables this ‘positive legislator’ role to be granted in a manner that still protects core values of liberal democracy.
Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Govt & Int Relations
Griffith Business School
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9

Al-Owais, Hadif Rashid. "The role of the Supreme Court in the constitutional system of the United Arab Emirates : a comparative study." Thesis, Durham University, 1989. http://etheses.dur.ac.uk/786/.

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This study is concerned with demonstrating the importance of the Supreme Court in the constitutional system of the United Arab Emirates, discovering its possible contributions to constitutional development and recommending measures to improve the effectiveness of the Court. A brief analysis of the modern history of the United Arab Emirates and an outline of the characteristics of this country and its society are provided. The constitutional history of the country is given, with specific emphasis on the process of drafting the current constitution. The role of constitutional courts in federal systems, their contributions to and the theoretical basis for participation in the development and maintenance of, constitutional systems is discussed. This study includes a fairly detailed analysis of the arguments about the role of the U.S. Supreme Court and the American Federal judiciary in practising judicial review, and the authority of judicial interpretations of the constitution. The West German experience in judicial review and its effects on federalism is analysed. The constitutional system of the United Arab Emirates and the position and competence of its Supreme Court is evaluated. A detailed study is provided of the development of the jurisprudence of the court since its establishment. Findings and recommendations aimed at improving the contribution of the Supreme Court in the constitutional system of the United Arab Emirates are provided.

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10

Preshova, Denis [Verfasser], Michael [Gutachter] Sachs, and Burkhard [Gutachter] Schöbener. "On the rise while falling: The New Roles of Constitutional Courts in the Era of European Integration / Denis Preshova ; Gutachter: Michael Sachs, Burkhard Schöbener." Köln : Universitäts- und Stadtbibliothek Köln, 2019. http://d-nb.info/1189811405/34.

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11

Jaftha, Justin Willian. "What is the role of the Constitutional Court in Safe-guarding the separation of powers in a dominant party democracy?" Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/29280.

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This thesis presents an analysis of the effect of dominant party democracy on South Africa’s traditional trilateral structures of government, with emphasis on the Constitutional Court. A dominant party democracy brings with it negative features, such as the blurring of boundaries of state and party, and the capturing of important institutions. In South Africa, it is specifically the capture of various independent institutions (state capture) by a dominant party and the placing of its members into these institutions to remove effective checks on the exercise of power by the government, which have been a worrying trend recently. This, in turn, spells rough weather ahead for our constitutional democracy, because it has the effect of withering down the effective system of checks and balances as part of the separation of powers doctrine in South Africa.The central question to explore in this thesis is thus. how the Constitutional Court can protect the democratic space by acknowledging the challenges posed by one-party dominance to democratic institutions and developing doctrines/strategies to deal with this, while not overstepping the mark and infringing on the separation of powers. This is not an easy task for the Constitutional Court to get exactly right. Thus, the Constitutional Court of South Africa has been widely criticised for avoiding any formal confrontation with the current government during its early years. Critics focused on cases such as the UDM floor crossing case and Glenister I. These two decisions have come under attack from constitutional law scholars, who labelled the Constitutional Court as a constrained court and argued that the court was not sufficiently pro-active in confronting the challenges of a dominant party democracy directly. This has led some scholars to the view that the South African Constitutional Court needs to develop a well thought through theory of the threat posed by the dominant party to the quality of South Africa’s democracy. The argument is that there may be a need for the South African Constitutional Court to develop a formal jurisprudence to deal with the negative consequences of a dominant party democracy. In this thesis, I will argue that this critique against the South African Constitutional Court seems out-of-date and, to some extent, overdone. The Constitutional Court in recent years has altered its approach and now deals differently (and more effectively) with the problems posed by dominant party democracy. This is evident from recent decisions such as the UDM secret ballot and two EFF judgments and the Glenister II judgment. In my view, the Constitutional Court has become more forceful in protecting the democratic space in South Africa because of changing political circumstances and because of the weakening position and complex, and sometimes contradictory, responses 8 from the ruling party in South Africa. At the same time, the Constitutional Court has acted with appropriate deference, addressing problems associated with one-party dominance while also showing adequate respect for the separation of powers doctrine. By adopting this approach, and if one views the Constitutional Court’s role through the lens of dominant party democracy, South African democracy – and South Africans themselves – have been better off. If the Court had taken a more forceful approach, it would have placed itself on a direct collision course with the ANC. That might have put the Court’s very existence at risk, and our hard-fought democracy.

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12

Aurino, Marta. "Les modèles de justice constitutionnelle : entre inadéquation et innovation : pour une analyse multidimensionnelle de la justice constitutionnelle comparée." Electronic Thesis or Diss., Bordeaux, 2024. http://www.theses.fr/2024BORD0433.

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Cette thèse propose une réévaluation des modèles traditionnels de justice constitutionnelle par le biais d'une approche comparative et empirique. La distinction classique entre les modèles américain et européen, confrontée à la diversité croissante des systèmes de justice constitutionnelle dans le monde, révèle d'importantes limites conceptuelles. Pour dépasser ces frontières, deux orientations analytiques émergent : l'une visant à élaborer de nouveaux modèles théoriques basés sur des critères renouvelés, et l'autre visant à développer des outils d'analyse novateurs, mieux adaptés à la complexité actuelle. C'est cette seconde approche, moins explorée, qui constitue le coeur de ce travail. À partir d'une analyse empirique des systèmes de justice constitutionnelle à l'échelle mondiale, en utilisant la méthode des analyses de correspondances, un outil d'analyse multidimensionnelle a été conçu. Cet outil permet de représenter la diversité des systèmes juridiques dans une perspective fluide et évolutive, en prenant en compte les variations contextuelles ainsi que les interactions multiples influençant le contentieux constitutionnel. Plutôt que de classer les systèmes selon des critères rigides, il les positionne dans une dynamique ouverte, reflétant la complexité de leurs interactions. L'objectif central est de mieux comprendre le rôle du juge constitutionnel, en analysant son intervention au regard des normes de référence du contrôle de constitutionnalité, des modalités d'accès à la justice et des compétences des Cours constitutionnelles. En adoptant une méthodologie empirique et multidimensionnelle, ce travail transcende les cadres traditionnels pour embrasser la complexité et la multiplicité des réalités juridiques contemporaines tout en créant un outil didactique
This thesis proposes a reassessment of traditional models of constitutional justice through a comparative and empirical approach. The classical distinction between the American and European models, when confronted with the growing diversity of constitutional justice systems worldwide, reveals significant conceptual limitations. To address these challenges, two analytical pathways emerge: one aimed at developing new theoretical models based on revised criteria, and the other focused on creating innovative analytical tools better suited to contemporary complexities. It is this latter, less explored approach that forms the core of this work. Drawing on an empirical analysis of constitutional justice systems globally, and employing correspondence analysis methods, a multidimensional analytical tool has been developed. This tool allows for the representation of the diversity of legal systems in a fluid and evolving framework, accounting for contextual variations and the multiple interactions influencing constitutional litigation. Rather than classifying systems according to fixed criteria, it positions them within an open dynamic, reflecting the complexity of their interactions. The central objective is to better understand the role of the constitutional judge by examining their participation in the decision-making process, with a focus on constitutional review standards, access to justice, and the competencies of Constitutional Courts. By adopting an empirical and multidimensional methodology, this work seeks to transcend traditional frameworks in order to embrace the complexity and multiplicity of contemporary legal realities while creating a didactic tool

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13

Mendes, Conrado Hübner. "Deliberative performance of constitutional courts." Thesis, University of Edinburgh, 2011. http://hdl.handle.net/1842/5974.

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Political deliberation is a classic component of collective decision-making. It consists in forming one’s political position through the give-and-take of reasons in the search of, but not necessarily reaching, consensus. Participants of genuine deliberation are open to transform their preferences in the light of persuasive arguments. Constitutional theory has borrowed this notion in its effort to reconstruct a justificatory discourse for judicial review of legislation. Constitutional courts were ascribed the pivotal role of implementing fundamental rights in most contemporary democracies and called for a more sophisticated picture of democratic politics. One influential defence has claimed that courts are not only insulated from electoral competition in order to guarantee the pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they are better located for public reasongiving. This belief has remained, from the normative point of view, largely underelaborated. The thesis proposes a model of deliberative performance to fill that gap. This qualitative concept unfolds the institutional and ethical requirements for courts to be genuinely deliberative. Instead of taking a stand on the old dispute about which institution is more legitimate to have the “last word” on constitutional meaning, this research leaves this question suspended and systematizes the large range of variations that can exist in constitutional courts’ performances. Discussions about the potential roles of constitutional courts, in this perspective, become more sensitive to contexts and to their varying degrees of legitimacy. The thesis offers a comprehensive picture of what is at stake if a constitutional court plans to be truly deliberative. This picture comprises the virtues presupposed by an ethics of deliberation, the institutional devices that facilitate deliberation, the approach to constitutional reasoning that is more hospitable to deliberation and, finally, the political perception to grasp the limits of deliberation itself.

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14

GUIMARAES, GUILHERME AVELAR. "FEDERATIVE POLITICAL AUTONOMY AND CONSTITUTIONAL JURISDICTION: THE RECENT ROLE OF THE BRAZILIAN SUPREME COURT (STF) AS THE FEDERATION´S ARBITRATOR IN LIGHT OF THE PRINCIPLE OF SUBSIDIARITY." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2013. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=23411@1.

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PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO
Com a engenhosa sobreposição constitucional de espaços políticos autônomos, de cidadãos comuns, num único território nacional, os Founding Fathers inauguraram o federalismo moderno. Tal revolução manifestou, em ato, a potência de uma multidão que desejou constituir novas realidades – mais comuns e plenas –, e novos modos de viver e decidir. Em sua fórmula original – de inspiração liberal, democrática, pluralista, igualitária e solidária –, o equilíbrio federativo confiou à União Federal apenas questões merecedoras de especial agilidade, unidade ou uniformidade – como, e.g., a declaração de guerra, a cunhagem de moedas, e padronização de pesos e medidas. Mantiveram-se descentralizadas todas as demais competências políticas das antigas colônias, recém-libertas. Desde então, uma tendência centralista e homogeneizadora, acentuada pelas exigências do Estado-social, desvia o federalismo da sua natureza limitadora do poder, protetora da liberdade, conciliadora de interesses gerais e específicos, e afirmativa de um locus privilegiado de cidadania. Nesta dissertação, o conflito irreconciliável entre a radicalidade inovadora do poder constituinte e as estruturas conservadoras que produz, a cada vez que altera a realidade, é o contexto em que se avalia eventual instrumentalidade da nossa jurisdição constitucional em relação a um federalismo centralizador, paternalista, quase nominal, no qual restariam aos entes subnacionais poucas e vigiadas liberdades. Nessa investigação, a recente fiscalização dos espaços políticos federativos pelo Supremo Tribunal Federal, à luz dos pressupostos teóricos, indica a posição da Corte nas disputas federativas de poder, e sua releitura, especialmente sob a perspectiva do princípio da subsidiariedade – expressão federativa das ideias de diversidade e solidariedade – revela outras possibilidades interpretativas.
With the ingenious constitutional superposition of autonomous political spaces of common citizens into a single national territory, the Founding Fathers have inaugurated the modern federalism. This revolution has expressed, in act, the power of a multitude that wished to establish new realities – more common and full – and new ways of living and making decisions. In its original formula – from a liberal, democratic, pluralistic, egalitarian and caring inspiration – the federal balance entrusted to the Federal Government only issues deserving special promptitude, unity or uniformity – e.g., the declaration of war, coinage, and the standardization of weights and measures. All other political powers of the former colonies, recently freed, remained decentralized. Since then, a centralist and homogenizing trend, accentuated by the demands of the Welfare State, diverts the federalism from its power-limiting, protector of freedom, conciliator of general and specific interests, and guarantor of a privileged locus of citizenship nature. In this dissertation, the irreconcilable conflict between the groundbreaking radical nature of the constituent power and the conservative structures it produces every time it changes the reality is the context in which it is evaluated any possible instrumentality of our constitutional jurisdiction in relation to a centralized and paternalistic, almost nominal, federalism in which only a few and monitored freedoms would remain for the subnational entities. In this investigation, the recent surveillance of federal political spaces by the Brazilian Supreme Court, in light of theoretical assumptions, indicates the position of the Court in federative disputes for power, and their rereading, especially from the perspective of the principle of subsidiarity – federative expression of the ideas of diversity and solidarity – reveals other interpretational possibilities.

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15

Spanou, Despina Anastassiou. "The European Parliament and the European Court of Justice : the contribution of case law, during the period from 1987 to 1997, to the development of the European Parliament's constitutional role." Thesis, University of Cambridge, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.621694.

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16

Bumin, Kirill Mikhaylovich. "VIABLE INSTITUTIONS, JUDICIAL POWER, AND POST-COMMUNIST CONSTITUTIONAL COURTS." UKnowledge, 2009. http://uknowledge.uky.edu/gradschool_diss/744.

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In pursuing their goals, newly-created constitutional courts of Eastern Europe and the former Soviet republics are affected by their institutional setting and capabilities. Yet, previous studies did not explore how constitutional courts develop over time and what noteworthy implications for politics and society result from their institutional growth. To address this gap in the literature, I measured a variety of organizational characteristics and constructed an index of institutional development for the twenty eight constitutional courts in the post-communist countries from the initial year of their transitions through 2005. I argued that high values on this measure (which I labeled the judicial viability score) should enable constitutional court judges to satisfy their policy objectives and improve public and elite perceptions of the judiciary’s role in new democratic systems. To demonstrate this empirically, I tested a series of statistical models of judicial influence to show that the level of court’s institutional viability has profound implications on its legal, political, and social impact. My analyses indicated that the level of the constitutional court’s institutional viability is, indeed, an important determinant of the constitutional court judges’ ability to actively shape public policies and render decisions which are independent of, and in opposition to, the preferences of dominant political actors and government institutions. Additionally, the results demonstrated that the level of constitutional court’s viability significantly affects the perceptions of the ordinary citizens and business elites—ordinary citizens and business owners and managers are more likely to express confidence in the national legal system in countries with relatively institutionalized constitutional courts than citizens living in countries with weakly institutionalized constitutional courts. Thus, my research highlights the importance of studying the evolutionary process by which courts acquire institutional viability and, in doing so, contributes to our understanding of the factors shaping the development of democracy, the rule of law, and constitutionalism in the post-communist societies.

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17

Yatim, Rais. "The rule of law and executive power in Malaysia : a study of executive supremacy." Thesis, King's College London (University of London), 1994. https://kclpure.kcl.ac.uk/portal/en/theses/the-rule-of-law-and-executive-power-in-malaysia--a-study-of-executive-supremacy(7227690b-171b-49cd-824f-39ca1d84bf9d).html.

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18

Morris, Robert J. "A comparative study of the meaning and importance of several constitutional cases in the highest courts of the PRC, Hong Kong, & Taiwan." Thesis, Click to view the E-thesis via HKUTO, 2007. http://sunzi.lib.hku.hk/hkuto/record/B37678620.

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19

Shackleford, Caroline Sara. "The fate of Heath's special investigation unit : an evaluation in terms of the separation of powers doctrine." Thesis, Stellenbosch : Stellenbosch University, 2002. http://hdl.handle.net/10019.1/53119.

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Thesis (LLM)--Stellenbosch University, 2002.
Some digitised pages may appear illegible due to the condition of the original hard copy
ENGLISH ABSTRACT: This thesis is a response to the judgment of the Constitutional Court in South African Personal Injury Lawyers v Heath, in which certain provisions of the Special Investigating Units and Special Tribunals Act were subjected to constitutional review. The outcome of the case was the striking down of certain provisions of the Act as unconstitutional, and the removal of Judge Willem Heath from his position as head of the Unit. The provisions were said to infringe upon the principle of separation of powers, an implicit term of the Constitution of South Africa. This principle affects the extent of the judicial power because of its influence on determining the acceptability of extra-judicial functions. The doctrine of separation of powers is therefore considered in its historical and theoretical context, with particular reference to the way in which it tends to limit or define the role of judges. Following this analysis, the status of institutions supporting constitutional democracy is examined, and the legislation governing Special Investigating Units is compared with that which regulates the office of the Public Protector. As a result, some alternative legislative means of achieving the ends of the Units, namely the combating of state corruption and maladministration, are suggested.
AFRIKAANSE OPSOMMING: Hierdie tesis volg op die uitspraak van die Grondwetlike Hof in South African Personal Injury Lawyers v Heath, waarin sekere bepalings van die Wet op Spesiale Ondersoekeenhede en Spesiale Tribunale aan grondwetlike hersiening onderwerp is. Die uitkoms van die saak was dat sekere ongrondwetlike bepalings van die Wet ongeldig verklaar is, en dat Regter Willem Heath van sy posisie as hoof van die Eenheid onthef is. Dit is bevind dat die bepalings die beginsel van skeiding van magte, 'n implisiete term van die Suid-Afrikaanse Grondwet, geskend het. As gevolg van sy invloed op die bepaling van aanvaarbaarheid van buite-juridiese funksies, beïnvloed dié beginsel die omvang van die juridiese mag. Die skeiding van magte leerstuk word dus in sy historiese en teoretiese konteks oorweeg, met spesifieke verwysing na die manier waarop dit neig om die rol van regters te beperk of te omskryf. Na hierdie analise word die status ondersoek van instellings wat grondwetlike demokrasie ondersteun, en die wetgewing wat die Spesiale Ondersoekeenhede beheer, vergelyk met dié wat die Openbare Beskermer reguleer. Op grond hiervan word sekere alternatiewe wetgewende metodes voorgestelom die doeleindes van die Eenhede, naamlik die bekamping van staatskorrupsie en wanadministrasie, te bereik.

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20

Zagalski, Cezar. "The courts and public policy : towards more effective judicial policy-making." Thesis, McGill University, 1992. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=61126.

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The Canadian Charter of Rights and Freedoms has significantly changed the functions of the Canadian courts. Ever since its entrenchment in 1982, the third branch of government has enjoyed a powerful status in the Canadian polity. Countless Charter decisions, affecting the lives of all Canadians, have been rendered. The courts have been asked to rule on cruise missile testing, abortion, aboriginal rights, minority language rights and a whole range of other issues of a political, economic or social nature. Our political system, whose traditional foundations lay in the principle of parliamentary supremacy, has become one of constitutional supremacy. The new and powerful status of the nonelected judiciary has raised serious questions not only regarding the legitimacy of judicial review under the Charter but also the institutional capacity of the courts to face the Charter challenge. The author examines the nature of the judiciary's policy-making function under the Charter in order to determine the extent to which the courts are equipped to fulfil their task. The thesis suggests that in order to face the Charter challenge effectively, the courts can no longer operate within the framework of the traditional adversary process. Instead, the courts must constantly look to the prevailing values in our society as well as examine thoroughly social and scientific phenomena before rendering an "informed" policy decision. This can only be achieved through a coherent framework of Charter analysis and effective ways in handling extrinsic materials. The focus of the present paper is on section 1 of the Charter which, due to its open-ended language, most clearly invites courts to make policy-type decision.

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21

Hingorani, Shweta. "Fiscal federalism and the judicialisation of politics : the German case." Thesis, University of Reading, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.265629.

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22

Quesada-Alpízar, Tomás. "Informal mandates & judicial power : the constitutional courts of Costa Rica, Chile, and Uruguay (1990-2016)." Thesis, University of Oxford, 2017. https://ora.ox.ac.uk/objects/uuid:8c42baa4-cdd4-4e05-86a4-4725074244c5.

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Standard explanations of judicial behaviour (i.e. legal, rational-choice, attitudinal, and institutional models) are overly static and exogenous, interested in instances of sudden change in judicial behaviour, as triggered by appointments, legal reforms, or shifts in the political context. While these models are useful in understanding the external incentives affecting judicial behaviour, they are unsuitable for explaining sustained judicial empowerment beyond temporary strategic calculations. In response, recent 'ideational' approaches, especially studying constitutional courts, highlight the importance of judges' ideas about their role - not their ideologies or policy preferences - in instilling a mission, rather than an incentive-oriented view of the judicial function. Yet, despite their more dynamic approaches, those methods have overlooked how ideational change in the 'outside' world translates into change 'inside' this type of courts. Due to those limitations, this study proposes a complementary explanation of judicial empowerment: a theory of informal mandates and endogenous empowerment. Viewed through this lens, change and variation in judicial empowerment within and across cases are explained by the construction, expansion, and endurance - or absence and collapse - of collective internal understandings of the court's role and mission. Such understandings are developed as legal doctrines and articulated under broader informal mandates by 'mission leaders'. Gradually, these informal mandates can expand and gather majority support from strategic partnerships formed between 'mission leaders' and 'supporting leaders' - usually justices with high seniority. The more these informal mandates expand and endure inside the court, the less exogenous factors and strategic incentives over-determine its behaviour in the long-run. Judicial empowerment, thus, is better understood as a process that develops and expands gradually, endogenously, and informally, with a mission-oriented purpose. The theory is applied in the constitutional tribunals of Costa Rica, Chile, and Uruguay from 1990 to 2016. These countries have similar rule-of-law conditions, but their constitutional tribunals differ considerably in the strength and endurance of their informal mandates and, as a result, have attained different levels of judicial empowerment.

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23

Weiden, David Lee. "Judicial decision-making in comparative perspective ideology, law and activism in constitutional courts /." [Austin, Tex. : University of Texas Libraries, 2007. http://www.lib.utexas.edu/etd/d/2007/weidend45079/weidend45079.pdf#page=3.

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24

Moustafa, Tamir. "Law versus the state : the expansion of constitutional power in Egypt, 1980-2001 /." Thesis, Connect to this title online; UW restricted, 2002. http://hdl.handle.net/1773/10730.

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25

Paixao, Leonardo André. "A função política do Supremo Tribunal Federal." Universidade de São Paulo, 2007. http://www.teses.usp.br/teses/disponiveis/2/2134/tde-01092007-150125/.

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Função política do Estado é a atividade que órgãos instituídos pela Constituição exercem no âmbito de sua competência, tendo por objetivo preservar a sociedade política e promover o bem comum, e que consiste em determinar, mediante a livre interpretação de normas constitucionais, o que é o interesse público e quais são os meios necessários à sua implementação. A função política é desempenhada por diversos órgãos e poderes, inclusive pelos tribunais constitucionais. Os tribunais constitucionais exercem função política, basicamente, em relação a quatro grandes temas: separação de poderes, federalismo, direitos fundamentais e funcionamento das instituições democráticas. O exercício da função política pelos tribunais constitucionais possui características específicas. Os tribunais constitucionais têm legitimidade para exercer função política, apesar de seus integrantes normalmente não serem escolhidos pelo voto popular. No desempenho de função política, os tribunais constitucionais devem observar limites. No Brasil, o órgão que exerce o papel de tribunal constitucional é o Supremo Tribunal Federal. O Supremo Tribunal Federal, ao longo de sua história, desde sua instalação, em 1891, até os dias atuais, contribuiu para a definição do que é o interesse público, bem como para a definição dos meios necessários para sua implementação. Portanto, exerceu função política. Foram identificadas sete fases na história do Supremo Tribunal Federal. Em algumas delas, o Supremo Tribunal Federal exerceu função política mais ativamente. Em outras fases, limitou-se a confirmar decisões adotadas por outros órgãos de soberania. O Supremo Tribunal Federal tem legitimidade para exercer função política. Sua jurisprudência demonstra também que, no exercício da função política, o Supremo Tribunal Federal observou limites.
Political function of the State is the work performed by constitutional bodies, within the scope of their respective competencies, to preserve political society and promote public welfare. It consists in determining, through free interpretation of constitutional rules, what may be considered of public welfare and what are the necessary mechanisms for its implementation. Political function is performed by various powers and bodies including the constitutional courts. Basically, constitutional courts exercise political function in relation to four major subjects: segregation of power, federalism, basic rights and the functioning of democratic institutions. Constitutional courts bear specific characteristics when it comes to exercising their political function. A constitutional court has the legitimacy to exercise political functions even though its constituents are not elected through popular suffrage. In the exercise of their political function, constitutional courts must beware of some limits. In Brazil, the body that plays the role of constitutional court is the Federal Supreme Court. Throughout its history, that is, since its establishment in 1891 until the present, the Federal Supreme Court has contributed to define what public welfare is, as well as to its implemen-tation. Therefore, it has exercised its political function. Considering its jurisprudence, it is possible to identify seven stages in the Federal Supreme Court history. In some of these stages the Supreme Court exercises its political function actively. In other stages, simply confirmed decisions taken by other bodies. The Federal Supreme Court has legitimacy to exercise its political function. Its jurisprudence also shows that, in the exercise of its political function, the Federal Supreme Court has known some limits.

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26

Forrest, Christopher. "A conversation among equals : courts, legislatures and the notwithstanding clause." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=112336.

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Dialogue between courts and legislatures can occur where legislatures reverse, modify or avoid judicial decisions. With two exceptions, however, legislatures have only reversed the Supreme Court on three occasions. Defiant legislative responses enacted without the notwithstanding clause undermine the Charter and the courts, and are an inappropriate means of expressing institutional disagreement. However, based on a model of coordinate constitutionalism, recourse to the override constitutes a legitimate means for legislatures to advance alternate interpretations of Charter rights. Furthermore, section 33's value lies in the opportunity it creates for public deliberation regarding issues of national importance. Its relative disuse can be attributed to a combination of factors including its legislative history, the influence of American constitutionalism and an executive-dominated parliamentary process. Recognizing the legitimacy of section 33 would contribute to a greater respect for the roles and responsibilities of all three branches of government under a system of constitutional supremacy.

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King, Jeff A. "The role of courts in welfare rights adjudication." Thesis, University of Oxford, 2008. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.508579.

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28

Abdullah, Muhammad Tahir. "Role of UAE courts in international commercial arbitration." Thesis, University of Bedfordshire, 2013. http://hdl.handle.net/10547/305727.

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Concept of arbitration has been prevalent, historically, in the Middle East since the early days of Islam. The arbitral process has been problematic in the UAE however, it has not been until recently that the UAE has recognized the importance of arbitration as a powerful dispute resolution alternative and revised its legislation to accommodate the proceedings of domestic and international arbitration. In the past, foreign investors have been reluctant to select the UAE seat for their arbitration proceedings. There has been a perception that, as a general rule, the practice of international commercial arbitration in the Middle East is still in its infancy. The UAE is now demonstrating to the international community that it has the necessary infrastructure and laws in place to successfully count itself as one of the key arbitration players, alongside London, Paris and Hong Kong. This has been the result of the UAE updating their laws, reforming dispute resolution practice and procedures and through the establishment of key regional arbitration centres. The UAE's accession to the New York Convention was also seen as a significant step in demonstrating the UAE's commitment to foreign investors and the international community. Under Federal Decree No. 43 of 2006, the UAE managed to accede to the New York Convention. The UAE's accession is considered as a mile stone towards provision for a more straightforward arbitral process and enforcement of foreign arbitral awards in other Convention states. As a recent development, the UAE has evidenced the joint venture between the Dubai International Financial Centre ('the DIFC') and the London Court of International Arbitration ('the LCIA'), in February 2009, to create the DIFC-LCIA Arbitration Centre ('the DIFC~LCIA'). The DIFC-LCIA operates alongside the longer-established Dubai International Arbitration Centre ('the DlAC'). Both offer their own procedural rules and regulations for the amicable settlement of disputes through arbitration. The Courts role is vital in an arbitral proceeding in any jurisdiction. Although arbitration is believed as a court-free, independent forum for dispute resolution; the court plays fundamental role to ensure that the arbitral proceeding is taking place in a moderate and independent decorum. The UAE Court's role towards the International commercial arbitration has been very problematic and the courts historically used to intervene in the arbitral proceeding over tiny issues. The new UAE arbitration laws has changed the situation and curtailed the courts powers to interfere the arbitral proceeding. At present, the arbitration in the UAE is more independent and straightforward. The proposed UAE arbitration law has much more similarities with the Model Law UNCITRAL and meets the International standards. A lot of work still has to be done in order to make the arbitration more independent, straightforward and friendly in the UAB. The Court's role is vital and is required to be more supportive then it is at present in the arbitral process.

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Sunkin, Maurice. "The use and the impact of judicial review in England and Wales." Thesis, University of Essex, 2002. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.369365.

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30

Gouvea, Heitor B. "An Iridescent Dream: Money, Politics, and the American Republic, 1865-1976." Thesis, Boston College, 2009. http://hdl.handle.net/2345/2218.

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Thesis advisor: R. Shep Melnick
The United States now has an extensive, publicly controlled, and bureaucratic system of election regulation. Until roughly a century ago, however, elections were viewed as private party contests subject to minimal state regulation. We examine how this changed, considering in particular the role played by the courts, given that for much of the nineteenth century they viewed the parties as private, constitutionally protected associations. We consider how and why the libertarian argument concerning free speech came to prominence in the campaign debate, and find that at first neither the reformers nor the courts at any level viewed this as a fundamental obstacle to--or even an issue to be considered in--the regulation of money in politics. This shift from a private to a public electoral system had a significant impact on American democracy that has not often been examined. To understand these changes, we examine the arguments put forth by advocates of cam-paign finance reform from the nineteenth to the latter part of the twentieth centuries. We focus on how the proponents justified these laws and how state and federal courts responded to these arguments, paying particular attention to court rulings on the constitutionality of these unprecedented statutes in the late nineteenth and early twentieth centuries and to the evolution of their jurisprudence in this regard during the twentieth century
Thesis (PhD) — Boston College, 2009
Submitted to: Boston College. Graduate School of Arts and Sciences
Discipline: Political Science

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Hilly, Laura Ellen. "Experienced justice : gender, judging and appellate courts." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:d3f64853-898a-4c01-a17e-819d6a095f52.

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The under-representation of women in the senior appellate judiciary in common law jurisdictions remains an enduring problem. Much has been written about the lack of women’s participation in the judiciary and what strategies, if any, should be undertaken in order to resolve this persistent problem. However, this thesis takes a step back to ask a broader question: what impact does gender diversity have upon judicial decision making in appellate courts? It seeks to answer this question by engaging feminist standpoint theory to assess the experiences of men and women judges from three common law jurisdictions: England, South Africa and Australia. Through a series of interviews conducted with members of the senior judiciary in these jurisdictions in 2012 and 2013, this thesis explores the extent that interviewees consider that gendered experiences impact upon their own judging, and judging within the dynamics of collegiate appellate courts. This thesis concludes that while it is not possible to pinpoint one particular ‘contribution’ or ‘impact’ that gendered experiences have upon judging, it is nonetheless generally considered by those interviewed to be an important part of the judicial decision making process in several subtle, yet important, ways. Because of the considerable role that diverse gendered experiences play in judicial decision making, appointments processes should be sensitised to the need for diversity of experience and alive to the danger of ostensibly neutral appointment criteria devaluing diverse experiences, particularly the experiences of women in the law.

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GALIMBERTI, MARCO. "From isolation to commonality? The interplay among national constitutional courts in the paradigm of European integration." Doctoral thesis, Università degli Studi di Milano-Bicocca, 2020. http://hdl.handle.net/10281/264124.

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Come interagiscono tra di loro le corti costituzionali nazionali? Negli ultimi decenni, tale quesito ha ricevuto sempre maggiore attenzione da parte dello studio del diritto comparato su scala globale. Il medesimo interrogativo sembra acquistare ancor più rilevanza nell’ottica dell’integrazione europea. Come è noto, quest’ultima ha rappresentato un processo dialogico, nel quale gli ordinamenti giuridici nazionali interagiscono con l’ordinamento giuridico sovranazionale. In tale contesto, la dottrina si è focalizzata principalmente sui rapporti “verticali” che intercorrono tra corti nazionali e Corte di Giustizia dell’Unione europea (CGUE), con peculiare riguardo al coinvolgimento delle corti costituzionali nazionali nel rinvio pregiudiziale alla corte del Lussemburgo. Al contrario, molta meno attenzione sembra esser stata riservata alla dimensione “orizzontale”, ossia all’interazione tra le corti costituzionali nazionali stesse. Muovendosi in quest’ambito rimasto finora parzialmente inesplorato, la presente ricerca ha pertanto ad oggetto l’indagine dei rapporti orizzontali tra le corti costituzionali (e, in taluni ordinamenti, corti supreme) degli Stati membri dell’Unione europea (UE), all’interno del processo di integrazione europea. In tal senso, l’analisi si concentra sulla principale modalità di interconnessione sul piano orizzontale, identificabile nel ricorso – più o meno esplicito – all’argomento comparativo. L’elemento di novità che la tesi mira ad introdurre rispetto allo stato dell’arte consiste, in particolare, nell’esaminare la suddetta interazione orizzontale nel suo intreccio con un altro rapporto tra giurisdizioni, vale a dire la relazione tra corti costituzionali nazionali e la CGUE. Procedendo in via cronologica, lo studio si propone di verificare se, e in tal caso in quali termini, i rapporti orizzontali tra corti costituzionali nazionali ed il processo di integrazione europea si siano vicendevolmente influenzati. A questo proposito, tra le questioni sulle quali la ricerca pone l’accento vi è la possibilità di individuare tendenze condivise all’interno della giurisprudenza europea elaborata da parte dalle corti costituzionali di diversi Stati membri; l’eventuale incidenza del modello di giustizia costituzionale adottato dagli ordinamenti giuridici nazionali sul ricorso a strategie argomentative comuni; e, infine, il possibile collocamento dei rapporti orizzontali tra corti costituzionali all’interno del dibattito dottrinale in materia di costituzionalismo su scala regionale e globale. Al fine di affrontare questi interrogativi, la tesi si struttura in tre sezioni, precedute da un’introduzione diretta a definire il perimetro dell’indagine nonché a giustificare la selezione delle giurisdizioni nazionali e delle relative pronunce che formano oggetto di discussione nel corso della trattazione. Il capitolo di apertura passa in rassegna le reazioni dimostrate, nelle fasi iniziali dell’integrazione europea, da parte degli Stati membri e delle rispettive corti costituzionali nei confronti del principio del primato elaborato dalla giurisprudenza della CGUE, soffermandosi sulle dottrine dei contro-limiti elaborate dai giudici costituzionali italiani e tedeschi. Entrando nel merito delle successive fasi dell’integrazione, tra le quali, nello specifico, la ratifica dei Trattati di Maastricht e di Lisbona, il secondo capitolo si occupa della progressiva proliferazione delle dottrine dei contro-limiti nella giurisprudenza delle corti costituzionali di alcuni degli ordinamenti che hanno successivamente aderito all’UE. Il capitolo conclusivo dell’elaborato volge lo sguardo, infine, alla recente giurisprudenza di alcune corti costituzionali nazionali in relazione alla Carta dei diritti fondamentali dell’Unione europea, allo scopo di esplorarne le potenzialità quale strumento di interazione orizzontale.
The purpose of the research is to explore the horizontal interplay ongoing among national constitutional courts in the realm of the European integration process. In this regard, the analysis is mostly centred on the main avenue for horizontal interaction, that is the (either overt or implicit) recourse to judicial comparative reasoning. Accordingly, the element of novelty that the thesis aims to add to the state of the art is the intertwining of such horizontal interaction and another existing interplay, this latter being the relationship between national constitutional courts and the CJEU. Following a chronological timeline, the study seeks to investigate, thus, whether and to what extent the horizontal interplay among constitutional courts and the evolution of the European integration have influenced each other. Incidentally, the study sheds some light on further issues, such as the question of whether (and, if so, in which direction) this horizontality has witnessed a trend of substantive convergence in the constitutional courts’ case law; whether the model of constitutional justice adopted in the domestic legal systems may have any relevance in terms of such horizontal relationships; and, lastly, which role the horizontal interaction among national constitutional courts might play within the debate on European and global constitutionalism. In order to address the above issues, the study is divided into three chapters, which are preceded by an introduction clarifying what is the red thread that runs through the dissertation and justifies the selection of the national jurisdictions and their respective cases to be discussed. Taking the cue from the early steps of the European Communities, the opening chapter provides an overview of the six founding Member States’ constitutional reactions to the principle of primacy of Community law as fashioned by the CJEU. This comparative examination intends to highlight both similarities and divergences emerging in the attitude of highest national courts at the initial stages of European integration. In this context, a first fil rouge is recognized in the line of argument of fundamental rights protection, the major example being the analogy between the constitutional reservations arisen in the “counter-limits” doctrines of the German Bundesverfassungsgericht and of the Italian Corte costituzionale. The second chapter investigates, in a chronological order, the circulation of the counter-limits narrative in the following phases of European integration. After considering the case of Ireland, the analysis focuses on a set of national judgments relating to the ratification of the Maastricht and the Lisbon treaties. The comparison of these decisions will look at two new common argumentative strategies, such as the ultra vires review and the safeguard of national identity. Finally, cross-fertilization in the post-Lisbon scenario is taken into account to show the recent tendency of national constitutional courts to borrow the horizontal interplay. Last but not least, the third chapter delves into a contemporary phenomenon, that is the growing discovery of the potential of the Charter of Fundamental Rights of the European Union as a ground-breaking tool for horizontal interaction.

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Jameson, A. "The Federal Constitutional Court, basic rights and the family : A study of the political significance of judicial review in West Germany." Thesis, University of Oxford, 1986. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.384698.

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Wilhelm, Teena. "Judicial Policymaking: The Preemptive Role of State Supreme Courts." Diss., Tucson, Arizona : University of Arizona, 2005. http://etd.library.arizona.edu/etd/GetFileServlet?file=file:///data1/pdf/etd/azu%5Fetd%5F1228%5F1%5Fm.pdf&type=application/pdf.

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35

Morales, Cecile E. "The role of the courts in modern British government." Thesis, University of Essex, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.635989.

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The role of the judiciary in British government has given rise to considerable controversy. Commentators disagree on two important questions, one empirical, the other normative. The empirical question relates to what judges do, and the normative one concerns what judges should - or should not - do. Although these two questions are logically independent of each other, in practice empirical assessments of the judiciary are often laden with normative assumptions and preferences. As a result, the debate surrounding the modern British judiciary is highly polarised. In the light of this debate, a comprehensive account of the courts' contemporary role is urgently needed. To that end, this thesis addresses the following question: to what extent do judges voluntarily intervene in the conduct of British government? In answering this question, I provide an empirical analysis of what I term the courts' autonomous governmental role - that is to say, judges' propensity to develop and expand - or indeed restrict - the scope and depth of their interventions in relation to other governmental institutions. In order to study the role that the courts choose to play in the British political system today, I analyse public law decisions, lectures given by senior judges and interview data. The argument presented in this thesis is threefold. First, judicial powers - whether granted by Parliament or developed by the judges themselves at common law - should not be confused with what judges actually do. Powers only become effective if the judges are willing to make use of them. Second, the courts' degree of involvement in the political system is not uniform: judges are more assertive in some areas than in others and these differences can be only identified by means of an in-depth study of the judicial process. Third, far from being power hungry, as they are sometimes portrayed, judges exercise a considerable degree of restraint in their judgements.

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Osterkamp, Jana. "Verfassungsgerichtsbarkeit in der Tschechoslowakei (1920-1939) : Verfassungsidee, Demokratieverständnis, Nationalitätenproblem /." Frankfurt am Main : Klostermann, 2009. http://d-nb.info/991572629/04.

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37

Birenbaum, Jordan Daniel. "“Parliamentary sovereignty rests with the courts:” The Constitutional Foundations of J. G. Diefenbaker’s Canadian Bill of Rights." Thèse, Université d'Ottawa / University of Ottawa, 2012. http://hdl.handle.net/10393/20672.

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The 1980s witnessed a judicial “rights revolution” in Canada characterized by the Supreme Court of Canada striking down both federal and provincial legislation which violated the rights guaranteed by the 1982 Charter of Rights. The lack of a similar judicial “rights revolution” in the wake of the 1960 Canadian Bill of Rights has largely been attributed to the structural difference between the two instruments with the latter – as a “mere” statute of the federal parliament – providing little more than a canon of construction and (unlike the Charter) not empowering the courts to engage in judicial review of legislation. Yet this view contrasts starkly with how the Bill was portrayed by the Diefenbaker government, which argued that it provided for judicial review and would “prevail” over other federal legislation. Many modern scholars have dismissed the idea that the Bill could prevail over other federal statutes as being incompatible with the doctrine of parliamentary sovereignty. That is, a bill of rights could only prevail over legislation if incorporated into the British North America Act. As such, they argue that the Diefenbaker government could not have intended the Bill of Rights to operate as anything more than a canon of construction. However, such a view ignores the turbulence in constitutional thinking on parliamentary sovereignty in the 1930s through 1960s provoked by the Statute of Westminster. This era produced the doctrine of “self-embracing” sovereignty – in contrast to traditional “Dicey” sovereignty – where parliament could limit itself through “ordinary” legislation. The effective author of the Canadian Bill of Rights, Elmer Driedger, was an adherent of this doctrine as well as an advocate of a “purposive” approach to statutory interpretation. Driedger, thus, drafted the Bill based upon the doctrine of self-embracing sovereignty and believed it would enjoy a “purposive” interpretation by the courts, with the Bill designed to be as effective at guaranteeing rights as the Statute of Westminster was at liberating Canada from Imperial legislation.

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Benkendorfer, Jarrett Alan. "Courts-Martial and Civilian: How the Court Martial Affords Greater Constitutional Protections During Court Procedures and Sentencing." Thesis, The University of Arizona, 2012. http://hdl.handle.net/10150/243739.

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There is often a misconception regarding the military and the procedures that it uses in order to bring military personnel and prisoners of war to justice. While it is true that Constitutional liberties are limited within the military system, the Constitution still very much applies to uniformed members who swear an oath to the document. In this regard, the Uniform Code of Military Justice was adopted to mirror the Federal Rules of Evidence, which govern the procedures for Article III courts. Through scrutinizing the sentencing procedures that take place in a civilian court and comparing those same procedures with its court martial counterpart, there is evidence to suggest that the UCMJ has better methods to ensure that a defendant’s rights are protected from the time an investigation begins to the time of acquittal or guilt. The methods in jury selection and the weight of the orders issued by a Judge Advocate General are two examples of such enhanced procedures. Since 2001, there has also been discussion involving detained individuals at Guantanamo Bay, Cuba, which has led to a sparked interest in the discussion of military commissions. Ultimately, individuals are far more likely to face a fair trial if they enter into a court martial rather than a civilian court.

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Fisseha, Yonatan Tesfaye. "Who interprets the Constitution : a descriptive and normative discourse on the Ethiopian approach to constitutional review." Diss., University of Pretoria, 2004. http://hdl.handle.net/2263/1079.

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"The Ethiopian Constitution, in a 'creative stroke', provides the power to "interpret" the Constitution to the House of Federation (the House), which is referred to by some writers as the "Upper House" or "Second Chamber" of the bicameral parliament. The Constitution also establishes the Council of Constitutional Inquiry (the Council), a body composed of members of the judiciary, legal experts appointed by the House of Peoples' Representatives and three persons designated by the House from among its members, to examine constitutional issues and submit its recommendations to the House for a final decision. This is, of course, very different from a number of other more well-known legal systems which vest the power of constitutional review either in general courts or in constitutional courts set up exclusively for constitutional matters. The formal way through which issues of constitutional interpretation take place is via the Council. Issues of constitutional interpretation are referred to the Council by a court or "the interested party" to a dispute. The Council, after examining the constituitonal issue, can either remand the case to the competent court after it has found no need for constitutional interpretation, or submit its findings on constitutional interpretation to the House. The House, after deliberating on the suggestions of the Council, can either accept or reject the recommendations of the Council. It should be noted that a party not satisfied with the order of the Council to remand the case to the competent cout for lack of grounds of constitutional interpretation, may appeal against the order to the House. As indicated above, the House has the final and ultimate power to interpret the Constitution. However, the role of the courts in the interpretation of the Constitution is still far from settled. The function, relation and co-existence of the courts and other organs of state need to be spelled out clearly. The extent to which, and the circumstances under which, the judiciary should defer to other institutions, and especially to the House, need to be ascertained. The difficulty lies in determining where the role of the court ends and that of the other institutions (especially the Council and House) begins. The problem has a normative component as well. The Ethiopian approach to constitutional review, one may argue, is a response to the ocunter-majoritarian dilemma. By excluding the involvement of ordinary or special courts from the business of constiutional review ,the government has made it impossible for the court to "usurp legislative power". A question, however, remains whether this really represents an adequate response to the counter-majoritarian dilemma. This research paper investigates both the descriptive and normative component of the problem. As the title of the study and the discussion in the preceding paragraphs suggest, it asks who interprets the Constitution and who should do so. While the first part sets out to investigate the structure and institutions of constitutional review in Ethiopia, the second part evaluates the legitimacy of the system." -- Introduction.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004.
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM

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40

Magalhães, Pedro C. "The Limits to Judicialization: Legislative Politics and Constitutional Review in the Iberian Democracies." The Ohio State University, 2003. http://rave.ohiolink.edu/etdc/view?acc_num=osu1046117531.

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41

Brazdauskaitė, Giedrė. "Lietuvos Respublikos Konstitucijos Ir Europos Sąjungos teisės sąveika: integracijos problemos." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2006. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2005~D_20060315_114141-78315.

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1990 m. kovo 11 d. buvo atkurta nepriklausoma Lietuvos valstybė. Šis įvykis atvėrė naują Lietuvos konstitucinės raidos etapą. 1992 m.spalio 25 d. įvykusiame referendume Lietuvos Respublikos piliečiai pritarė LR Konstitucijai1, kuri įtvirtina Lietuvos nepriklausomybę ir demokratiją bei išreiškia tautos suverenitetą. Atkūrus nepriklausomybę, Lietuva tapo pripažinta dalyve tarptautiniuose santykiuose. Bendradarbiavimas tarp Lietuvos ir Europos Bendrijos prasidėjo 1991 m. 1992 m. gegužės 11 d. Lietuva ir Europos Bendrija pasirašė prekybos ir komercinio bei ekonominio bendradarbiavimo sutartį2, o vėliau priėmė deklaraciją dėl politinio dialogo tarp Bendrijos ir Lietuvos Respublikos. 1993 m. birželio 21-22 d. vykusiame Europos Vadovų Tarybos susitikime Kopenhagoje Bendrija pirmą kartą suformulavo savo poziciją dėl Vidurio ir Rytų Europos valstybių narystės Europos Sąjungoje ir nustatė kriterijus jų dalyvavimui šioje Bendrijoje. 1994 m. liepos 18 d. buvo pasirašyta ES ir Lietuvos laisvosios prekybos sutartis.3 Tų pačių metų pabaigoje prasidėjo derybos dėl Europos sutarties, kurios baigėsi 1995 m. birželio 12 d. Europos Sutarties pasirašymu.4 1995 m. gruodžio 8 d. Lietuvos Respublikos Vyriausybė įteikė oficialų prašymą priimti Lietuvos Respubliką į Europos Sąjungą (toliau vadinama ES). Prasidėjo itin sudėtingas derybų etapas, kurio metu Lietuvos teisė buvo derinama su Bendrijos teise. Stojimo derybos buvo oficialiai baigtos 2002 m. gruodžio 12-13 d. Kopenhagoje vykusiame Europos... [to full text]
In the process of EU integration Lithuania faced many complicated legal issues. Constitutional amendments were no exception. The Constitution of the Republic of Lithuania did not contain any provision for the delegation of state competences. The constitutional jurisprudence of the member states, the case-law of the Court of Justice and academic circles provide different interpretations for the primacy of EU law, the supremacy of the national constitutions, and the concept of sovereignty. The Constitutional Court of the Republic of Lithuania has not yet expressed any position concerning the interrelationship of EU law and the Constitution of the Republic of Lithuania.

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42

Keinan, Shay Baruch. "Diasporas and Deliberative Democracy: A case study of Jewish diaspora involvement in constitutional deliberations in Israel." Phd thesis, Canberra, ACT : The Australian National University, 2017. http://hdl.handle.net/1885/141459.

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The boundaries of citizenship are increasingly contested. The trend among scholars is to try to expand the state’s responsibilities and duties to include non-citizens in the relevant polity. Legal, social and political theorists ask whether citizenship can or should exist beyond the nation state and a defined territory. This debate closely relates to the burgeoning research regarding diaspora communities and their connections with their countries of origin or homelands (‘kin-states’). Diaspora communities have always maintained some level of interest in the affairs of their kin-states, but globalisation and advanced communication technologies have made it easier for people in the diaspora to engage in activities that are directed at the political and social life of their kin-states. Kin-state governments also increasingly extend their actions beyond their state borders and reach out to their diaspora communities in order to promote a specific definition of the national community and to reap political and economic gains. This trend of diaspora communities influencing political decisions in a country in which they do not reside raises a question of legitimacy in traditional liberal-democratic models of governance: why should diaspora people be allowed to affect political decisions in their kin-state when they may not have to bear the consequences of such decisions? As diaspora populations become more and more involved in political processes in their kin-states, modern democratic theories need to adapt in order to accommodate such encroachments on traditional democratic principles. In this thesis I analyse the challenges and legal implications created by the existence of large and influential diaspora communities in today’s globalised world. I connect diaspora theory with deliberative democratic theory, filling a gap in deliberative democratic literature. I contend that elite models of deliberative democracy can be useful in overcoming the challenges mentioned above. I examine the role of constitutional courts in a deliberative democracy and argue that they may be better situated to conduct deliberations in divided societies where ethnic and religious tensions prevent other democratic bodies from deliberating effectively. This is especially relevant when dealing with divided societies with large diasporic populations. To support these claims, I examine the Israeli Supreme Court. I analyse the Israeli Supreme Court’s unique deliberative features and explain how these features have enabled diaspora Jews (and other groups of non-citizens) to participate in the Israeli democratic process. I examine illustrative cases in which Jewish diaspora activists were involved in proceedings and deliberations at the Israeli Supreme Court. The case studies demonstrate that, under certain circumstances, diaspora communities can legitimately and effectively participate in political processes in their kin-states, challenge constitutional norms and influence government policies and laws.

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Lee, Yiu-cho Joseph, and 李耀祖. "The policy role of administrative tribunals: a study of the Air Transport Licensing Authority." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1989. http://hub.hku.hk/bib/B31975963.

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Ahmad, Kamarudin B. "The qualifications and role of the Qadi in Kedah, Malaysia." Thesis, University of St Andrews, 1993. http://hdl.handle.net/10023/13688.

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Sharī'a has never ignored the need of and the function of judge. This institution, as developed in the early age of Islam, aimed to establish the rule of God on earth, to decide and explain the law according to the Islamic Law. It appears that anybody could be appointed as a judge but he was required to adopt certain criteria laid down by the fuqahā' based on the Qur'ān, Sunna. Ijmā and Oiyās. The requirements needed to be a judge in this Islamic approach are discussed widely in this study. This study also attempts to show and demarcate the limits of the power of judges in Sharī'a Courts in Kedah, Malaysia. It also shows how Islam established its system of justice in Malaysia. Some questions or hypotheses are examined, the first concerns whether or not people who lack capabilities should be allowed to be appointed judge. The second concerns whether or not the Islamic judicial system follows the Sharī'a in terms of punishment and procedure. The historical and theoretical settings in every age since the pre-Islamic to the 'Abbasid period are also presented. The situation of judge in Sharī'a Court in Kedah, Malaysia is also emphasised, beginning with the developments of the Sharī'a Court and the powers and duties of a judge according to the Malaysian constitutional system. Finally the subjects which have been discussed in separate chapters are actually related to each other. The whole important discussion is brought together, analysed and a conclusion drawn concerning the various problems raised.

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45

Smith, Bethany. "The role and influence of District Judges in the magistrates' courts." Thesis, University of Leicester, 2004. http://hdl.handle.net/2381/30111.

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The judicial responsibility for dealing with over one million defendants in the magistrates' courts each year is currently shared between over 30,000 volunteer lay magistrates, usually sitting in panels of two or three, and 281 legally qualified, state paid, District Judges (Magistrates' Courts) and Deputy District Judges (Magistrates' Courts), who sit alone.;District Judges (or stipendiary magistrates as they were previously entitled) were traditionally considered an anomalous feature of the magistrates' courts system. However, the last 10 years has seen the greatest expansion in their numbers and the consolidation of their role, status and organisation. Two main factors have contributed to these developments: the pressure for efficiency that has been brought to bear on the criminal justice process over the last twenty years, most recently embodied in the ethos of New Public Management and the marked shift towards professionalisation of the magistrates' courts. The combination of these factors, and the resultant growth in the numbers and role of District Judges, has led to the resurgence of familiar debates surrounding the fundamental values and functions of the magistrates' courts.;The objectives of this study were to assess the role of District Judges in terms of the assumptions made in respect of the skills and benefits they bring to the magistrates' courts and to determine the extent of their influence upon the conduct of court business. It is argued that District Judges exert the greatest influence in the micro arena of the courtroom. The combination of their status as legal professional and decision-maker transformed the dynamics of working relationships. However, they had little direct impact upon the general administration or non-judicial work of the court. It was found that their assumed quality in terms of speed was reflected in the largely pragmatic judicial role they undertook in the courts. However, it was also apparent that District Judges tended to be allocated a greater proportion of the 'more serious' types of cases in defence to their professional status. Finally, it is argued that, as 'expert' decision-makers within a system historically based on 'amateur community justice' the increased presence of District Judges has both led to, and been emblematic of, a subtle shift in the underlying values of the magistrates' courts.

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Stephens, Tim. "The Role of International Courts and Tribunals in International Environmental Law." Thesis, The University of Sydney, 2005. http://hdl.handle.net/2123/706.

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International environmental law is one of the most dynamic fields of public international law, and has rapidly acquired great breadth and sophistication. Yet the rate of global environmental decline has also increased and is accelerating. Halting and reversing this process is a challenge of effective governance, requiring institutions that can ensure that the now impressive body of environmental norms is faithfully implemented. This thesis explores whether and to what extent international courts and tribunals can play a useful role in international environmental regimes. Consideration is given to the threefold function of adjudication in resolving environmental disputes, in promoting compliance with environmental standards, and in developing environmental rules. The thesis is divided into three Parts. The first Part examines the spectrum of adjudicative bodies that have been involved in the resolution of environmental disputes, situates these within the evolution of institutions for compliance control, and offers a reassessment of their relevance in contemporary environmental governance. The second Part critically assesses the contribution that arbitral awards and judicial decisions have made to the development of norms and principles of environmental law, examining case law relating to transboundary pollution, shared freshwater resources and marine environmental protection. In the third Part of the thesis consideration is given to three looming challenges for international environmental litigation: accommodating greater levels of public participation in adjudicative processes, resolving practical problems stemming from the interaction among multiple jurisdictions, and ensuring that specialised courts and tribunals do not apply environmental norms in a parochial manner that privileges the policy objectives of issue-specific regimes.

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Stephens, Tim. "The Role of International Courts and Tribunals in International Environmental Law." University of Sydney. Law, 2005. http://hdl.handle.net/2123/706.

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International environmental law is one of the most dynamic fields of public international law, and has rapidly acquired great breadth and sophistication. Yet the rate of global environmental decline has also increased and is accelerating. Halting and reversing this process is a challenge of effective governance, requiring institutions that can ensure that the now impressive body of environmental norms is faithfully implemented. This thesis explores whether and to what extent international courts and tribunals can play a useful role in international environmental regimes. Consideration is given to the threefold function of adjudication in resolving environmental disputes, in promoting compliance with environmental standards, and in developing environmental rules. The thesis is divided into three Parts. The first Part examines the spectrum of adjudicative bodies that have been involved in the resolution of environmental disputes, situates these within the evolution of institutions for compliance control, and offers a reassessment of their relevance in contemporary environmental governance. The second Part critically assesses the contribution that arbitral awards and judicial decisions have made to the development of norms and principles of environmental law, examining case law relating to transboundary pollution, shared freshwater resources and marine environmental protection. In the third Part of the thesis consideration is given to three looming challenges for international environmental litigation: accommodating greater levels of public participation in adjudicative processes, resolving practical problems stemming from the interaction among multiple jurisdictions, and ensuring that specialised courts and tribunals do not apply environmental norms in a parochial manner that privileges the policy objectives of issue-specific regimes.

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Sudhankitra, Jiraporn. "A study of the constitutional role of the Thai Ombudsman." Thesis, University of Sheffield, 2015. http://etheses.whiterose.ac.uk/9343/.

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The Thai Ombudsman was initially established to handle complaints of grievances from individuals in dealing with government bodies. Subsequently, the Ombudsman was empowered with additional mandates and powers. To understand the viability of this new arrangement, this thesis examines the legislative framework of the Thai Ombudsman using existing well-accepted standards in ombudsman design and explores the actual practice of the Thai Ombudsman. The empirical findings of this thesis indicate that despite some weaknesses and shortcomings, the Thai Ombudsman has served well its main constitutional objectives in redressing administrative grievances and improving administration. Most of its institutional features meet standard practice. However, the thesis argues that some of the new functions do not fit easily into the jurisdiction of the Office because they call for different expertise and resources, attributes that the Ombudsman is not suitably designed for or does not sufficiently possess. Further, the new functions require the Ombudsman to operate in a manner which risks compromising its core values. Thus, rather than strengthening the position of the office, the additional functions weaken the institution, damaging its effectiveness and credibility. This thesis illustrates these points by testing the Thai Ombudsman's experience within an analytical framework based upon theorising on the ombudsman institution and the leading guidelines on the ombudsman available in the professional and academic literature. Ultimately, the thesis argues for the reform of the Thai Ombudsman scheme, including recommending the removal of unsuitable functions. The thesis also identifies weaknesses in the operation and legislative framework of the Thai Ombudsman Office which should be addressed by policy makers, so that it can provide the maximum benefit to the system of government administration and to the individual citizens. Finally, the thesis uses the findings with regard to the Thai Ombudsman to construct a theoretical template of the factors that should be used to determine whether or not an ombudsman scheme should be used to deliver additional functions beyond those of the core ombudsman model.

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Mahmood, Maryam Ahmadu. "The role of courts in adjudicating human rights violations by transnational corporations." Thesis, Middlesex University, 2017. http://eprints.mdx.ac.uk/22663/.

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In this era of globalisation, Transnational Corporations (TNCs) operated in an accountability gap that is often leaving these entities largely unregulated in the context of human rights. While globalization has facilitated growth for such entities by lowering legal, financial and technical restrictions, a failure to agree an overarching protection mechanism and the weaknesses in current protection mechanisms creates a vacuum. This vacuum primarily exists due to inadequate legal and regulatory regimes in host states that are developing countries, and who need and seek such investment; and the general difficulties concerning the weak enforceability of international law. As a consequence, TNCs could and do commit grave human rights violations while avoiding scrutiny despite the existence of a few international, regional and institutional instruments that could hold them accountable. The efforts to fill the regulatory vacuum in which TNCs function have taken the form of ‘soft-law’ instruments, however, their purely voluntary nature and purpose in encouraging TNCs to oblige rather than holding them legally accountable appears inadequate in promoting and protecting recognised principles of human rights law. Under international law victims of corporate human rights abuses, just as any other types of victims, have the right to access an adequate remedy through recourse to judicial remedies where other informal or administrative remedial schemes are insufficient. Having an efficient and fair justice system in developing host states for the victims of corporate human rights abuses is key to ensuring access to an adequate remedy. The thesis aims at examining the role of various courts at international, regional and domestic level; in the intergovernmental, home, as well as in the developing host state, to remedy and punish human rights violations by TNCs. The reasoning underpinning the examination of judicial scrutiny acknowledges that such authorities are not an ideal forum for improving human rights mainly due to problems that prevent full access to such legal remedies. However, the existence of judicial systems and effective remedies stemming from them is nonetheless believed to remain the essential, if not an effective forum based for victims seeking redress for corporate human rights abuses. This thesis also explores the question as to adequate forum for accountability, assessing efforts made in ‘home’ states where the TNCs are headquartered, and in ‘host’ states, where they operate, and where, practice shows, many of the unremedied human rights violations persist. Although, the emphasis for host states is on potential accountability. The study uses Nigeria as case study to assess the extent of human rights violations by TNCs in developing host states, how these entities have been dealt with by the courts at domestic level, in a bid to highlight the challenges hindering access to effective remedy and justice. It proposes as a recommendation that developing countries undertake deep structural reforms, alongside vigorous involvement of several actors, including the state, related agencies, the judiciary and public interest organisations.

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Mlimuka, Shirley Aggrey. "A perspective of the role of Tanzanian national courts in commercial arbitration." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12903.

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