E) The passage of the Charter has placed significant limitations on the power of the judiciary.…
The independence of the judiciary from the executive and legislative is said to kept by things like their fixed salaries and sub judice rule. Their salaries ‘are paid from the Consolidated Fund’ and aren’t fixed or changeable by Parliament or the government which keeps the judiciary free from political pressure in terms of finance. The sub judice rule is where the MPs in the House of Commons are unable to comment on current or pending cases. This keeps the judiciary free from political interference and prevents prejudice against judicial decisions. This rule is followed by ministers and civil servants too. Judges are said to be kept neutral because they lack politically ‘partisan activity’ as they don’t comment on ‘matters of public policy’ and avoid siding with different party governments. Another way the judiciary has been made increasingly independent and neutral is the changed position of the Lord Chancellor following the ‘2005 Constitutional Reform Act as he was previously the ‘head of the judiciary, the presiding officers of the House of Lords and a member of the Cabinet’. This Act removed his judicial role and transferred it to the Lord Chief Justice while also separating the ‘law lords’ from the House of Lords via the ‘establishment of a new Supreme Court’ in 2009. This again, separates the judiciary from the legislature and executive which enhances independence and neutrality.…
* Outline the roles of courts and parliaments in law reform and describe their limitations.…
A new role was thrust on the Supreme Court of Canada after the entrenchment of the Charter Rights and Freedoms in our Constitution in 1982. In order to promote and protect human rights in Canada, the Supreme Court had to passed several landmark decisions. It became a requirement for the Supreme Court to resolve issues that were previously thought as matters of policy for the legislative bodies. The policy making power of the Supreme Court of Canada has carried over into non-charter fields, such as administrative law, private law, and family law. However, an enormous impact of the Supreme Court and the Charter has been made in the field of Criminal Law, such as establishing and strengthening the rights of an accused individual.…
One strength of the UK constitution is that it is highly flexible and adaptable due to its uncodified nature, which allows constitutional arrangements to be altered in line with social and political changes. The rules of the constitution are not contained within a single document, unlike the United States’ constitution, which means that the ability to alter or remove statute laws, conventions or works of authority is far greater because no higher constitutional law is more difficult to change than ordinary law. It can evolve to meet the needs of the current times of the country and keep it from becoming dated. This is important since constitution can be changed quickly and efficiently if circumstances demand it. The relatively smooth transition of power from single part government to coalition government in 2010 shows that the constitution is flexible to cope with any form of government. The power of governments isn’t as tightly defined and limited as in countries with codified…
Koopmans, Tim. Courts and Political Institutions- A Comparative View. (2005). (Cambridge University Press: Cambridge). [24 April 2007].…
Judicial power is mainly in the control of the Supreme Court as well as other lower…
An example of this comes up in the case of Sauve v. Canada (Chief Electoral Officer). In an earlier case, the Supreme Court unanimously declared that government legislation that prevented inmates from voting was in violating of the Charter (Manfredi, 2007, 107). Parliament responded by amending the legislation so that only federal inmates convicted of indictable offences would be barred from voting (Manfredi, 2007, 107-108). The issue then came up again in Sauve v. Canada (Chief Electoral Officer). This case the court acknowledged that the legislature’s objectives in stripping inmates of the right to vote were legitimate (Sauve v. Canada, 2002, para. 19). The Federal Government asked the Court to defer to them, in the spirit of dialogue; the Court responded by saying that “the healthy and important promotion of a dialogue…should not be debased to a rule of ‘if at first you don’t succeed, try, try again’ (Sauve v. Canada, 2002, para. 17).” Thus, despite the fact that the government had a valid objective and responded to the Court’s suggestions in earlier cases surrounding disenfranchisement of inmates, the Court still refused to show any deference to the legislature. It is hard to see how Section 1 actually facilitates dialogue, as seen above, under Section 1 the judiciary is the sole authority for determine if something is a valid objective, and the judiciary is not required to show any amount of deference to the legislature. In fact, rather that facilitating dialogue, Section 1 works to enshrine the judiciary as the sole body capable of interpreting and applying the Charter; a form of judicial supremacy (Slattery, 1987,…
Judicial review is the power they have to see if the laws and actions of the government are constitutional. If they decide that it is "null and void" then the law may not be enforced. In 1803, during the last weeks of john Adams presidency he appointed eight-two federalist people to office know has the "midnight judges". Thomas Jefferson soon became president and not all the appointees got the right papers which means couldn't take the job. Then ordered his secretary of state, John Madison, not to give the appointed judges there papers.William Marbury one od the appointees took it to supreme court because of the judiciary act of 1789 said he had the right to.They ruled or the opinion of the court was that he did have the right to his job but the judiciary act was unconstitutional.Part of the judiciary act that was passed by congress was ruled unconstitutional. By ruling part of the laws passed by congress unconstitutional the supreme court assumed he power of the judicial review. This famous case was known has Marbury v. Madison.The supreme court has acquired the judicial review and should keep the powers to make sure the laws are…
The other change of importance is the increasing use of constitutional implications as a means of constraining legislative power. While the High Court has given some guidance as to the application of constitutional implications at the Commonwealth level,3 particularly with regard to the implied freedom of political communication, there is very little understanding of how (or even if) the same principles can be applied to State Constitutions.…
The High Court of Australia and the Supreme Court of the United States have important roles in determining the federal distribution of powers and acting as ‘Constitutional guardians’. Both courts also exercise their powers as ultimate appellate courts to safeguard liberal rights and to protect their citizens from arbitrary governmental powers under the rule of law. The quality of these courts is underpinned by the ‘impartiality, integrity, and independence’ of the judges, which depends largely on the framework of judicial appointments.…
While the Judicial Branch holds an enormous deal of power and possesses an extremely influential grip on governmental processes that occur in both national and state levels, the system of checks and balances assures that it is not a monarchial power while also allowing it some level of power. Judicial review, the belief that the Judicial Branch possesses the ability to control and veto decisions made by the Executive and Legislative branches, is one such power that the Judiciary contains in the system of checks and balances. This specific ability allows the Judiciary to hold a certain amount of restrained power that can control the other two branches.…
Firstly, according to the Canada’s Department of Justice, the judicial system must be independent and impartial of any influence. This allows judges to effectively make decisions that are “based solely on fact and law” (Canada's Court System, 2015). Thus, the rule of law can be effectively enforced since everyone is equal under the law and there is no bias in the rulings. Secondly, as mentioned above, judicial review is a political instrument that can be used to protect individuals’ constitutional rights from arbitrary governmental power. By allowing the court to strike down unconstitutional legislations, it prevents the government from creating laws that harass and violate the rights of its citizens. The last and most controversial attribute of judicial review is that the judges are usually appointed by an elected body and not directly elected by the people. This is to further separate judges from politics since judicial behaviors can be influenced by the need for re-elections (Cohen, 2013). Thus, once appointed, it is difficult to remove judges since they need to be free of influences in order to effectively do their…
Parliament is the supreme law-making body in the UK. This means that there are no constitutional restrains on legislative powers. This also includes the fact that courts are under an obligation to give effect to legislation passed by Parliament and not question statutes. Most importantly, Parliamentary Sovereignty is not a constitutional relic. This is simply because UK courts cannot strike down Act of Parliament. First assertion of Dicey is that Parliament’s legislative competence is unlimited. This was shown in Mortensen v Peters (1906). In this case, it was held that parliament is supreme over international law and UK courts felt bound to apply the UK Act, even though it was in contravention of international law. Another case that illustrates…
The main issue that arises from an inflated judiciary role is that the Charter is anything but self-executing, meaning it is open to much interpretation. It is full of vaguely worded rights and the social science evidence that courts have at their disposal in adjudicating Charter claims is anything but determinative. As a result, judicial decisions interpreting and applying the Charter are bound to be controversial as reasonable people can and do disagree about the interpretation and application of the Charter rights, so do reasonable judges, as evident by the number of closely divided decisions in the Supreme Court. As the Charter has elevated the role of the courts by allowing judges to make sweeping social and legal changes through their interpretation of the Charter's meaning, critics say this has diminished the supremacy of elected bodies such as Parliament and the legislatures, by giving courts the power to dismiss their decisions. Alternatively, others argue the Charter has initiated a "dialogue" between Parliament and the courts, with judges striking down laws where necessary which allows Parliament and legislatures to rewrite those laws in ways that are compliant with the Charter.…