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What is the importance of a constitution
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A constitution is vitally important in the successful functioning of a country. It is a comprised of body of principles by which a state is governed. Constitutions come in many different forms, New Zealand currently harbours an unwritten constitution that is not supreme law. The question that currently lingers in the air is would New Zealand benefit more by creating a new constitution that is both supreme and codified? In the even of this there would be certain upheavals in the current balance of governmental powers, specifically in regard to the judiciary. I believe that if New Zealand was to adopt a supreme constitution the judiciary would gain increased power as a consequence of their ability to interpret legislation, power that will not be acquired by the executive or legislature.
In countries such as the United States of America (USA) the constitution is a supreme law that overrides all other legislation. It is also entrenched meaning that a public referendum or parliamentary majority of 75% or higher is required to alter it. In addition, any lawsuit that their Parliament wishes to pass, must comply with the constitution. In certain predicaments those without this supreme law document have the ability to choose not to comply with laws that are transcribed in their constitution. An example being the allowance of passage for a new bill that does not fully comply with the New Zealand Bill of Rights Act 1990.
In relation to normal stature more permanence is given to supreme legislation however, controversial legislation can be exceedingly difficult to pass, though not impossible. In parallel to the USA, New Zealand’s current constitution is neither supreme nor entrenched, a trait inherited from Great Britain. A benefit of this i...
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...of the legislature whose role is to make law. A new supreme constitution would remove the executive power to overrule judicial authority in circumstances where decisions were made involving the constitution.
In deciding to make a supreme constitution for New Zealand a consideration of whether to grant the judiciary with this extended power needs to be deliberated. Many would argue that allowing an un-elected judge supreme power over the elected Members of Parliament would be undemocratic and henceforth violate the staple principle of our society. Having a judge consciously decide how to interpret statute that cannot be overruled, is one of the concerns that a supreme constitution faces. Currently New Zealand’s flexible, unwritten constitution is working satisfactory although in a rapid changing society a codified supreme constitution may become a potential reality.
The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution.
...e observed now as easily as it might be in it's final form. The prevailing notion is that through judicial interpretation or legislative act it should be more onerous to affect legislative override, not to the level of constitutional amendment of the rights in question, but perhaps a moderated super majority . The dialogue created by judicial-legislative interplay is truly indispensable to the democratic process, however the possibility exists that the dialogue could be circumvented and replaced with a legislative diatribe. As equally unappealing is the judicial monologue, the disdain for which increasingly dominates legislative analysis in the United States. The override provision effectively eliminates such concerns in Canada. The inevitable democratization of our override provision will in time perfect the dichotomy so vital to legislative-judicial conciliation.
A more sudden, but perhaps equally profound event is the adoption in 1982 of the Canadian Charter of Rights and Freedoms. Whereas before the adoption of the Charter Canadian legislatures were supreme, having power without limit within their jurisdictions, they now have debatable supremacy within altered jurisdictions. Moreover, although no powers or rights have been explicitly ‘reserved’ to the people, supporters of the charter nevertheless appear to give Canadians hope that the possibility may exist.
The absence of a codified constitution raises numerous questions. The main one being,
Many would state that the constitution is not a living document and therefore, it does not change to meet the needs of the nation. One purpose behind this contention would be the constitution comprising no Bill of Rights. A Bill of rights is the arrangement of the most essential rights to the natives of a nation. Australia is the main Western popularity based nation with not a protected or elected administrative bill of rights to ensure its natives (Mchugh 2007). According to Lowitja O'donoghue, previous ATSIC Chair It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here - save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians. This in itself obviously depicts the incapacity of the constitution as a political rule of the country. A sample would be the situation law of Gradidge v Grace Bros Pty Limited (1988). There, a hard of hearing quiet in the Compensation Court of New South Wales obliged manual/visual dialect translation. The translator kept on translaing trades between the judge and the advodates throughout lawful submissions. She persevered in doing so notwithstanding the direction of the judge that the trades did not have to be deciphered. Her emphasis after deciphering everything that happened in the general population ...
The Constitution confers judicial power on the Supreme Court and on inferior courts as created by Congress (Hames & Ekern, 2013). Judicial review is the power of the court to interpret the Constitution and invalidate conflicting laws.
In his influential 1957 Journal of Public Law article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Robert Dahl argues for the Supreme Court's role as a policy arbiter, describing it as being pseudo-political, acting to contravene the political sphere and legislative maneuvering while itself remaining outside of political life. Even per the skeptical Dahl, the Court can be effective in shaping policy and thus be as effective a branch as the other two given certain circumstances. More inclusive evidence demonstrates the contrary; while the Court is able to judge a law or an act’s constitutionality, its powers to correct what it deems errors are nearly nonexistent. Gerald Rosenberg’s theoretical insight and methodological thoroughness brings Dahl, his methods, and his conclusions into dispute as he counters assertions of the Court’s efficacy in policymaking.
One of the most influential and celebrated scholars of British consistutional law , Professor A.V Dicey, once declared parliamentary soverignity as “the dominant feature of our political insitutions” . This inital account of parliamentray soverginity involved two fundamental components, fistly :that the Queen-in-Parliament the “right to make or unmake any law whatever” and that secondly “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” . However this Diceyian notion though an established principle of our constitution now lies uneasy amongst a myriad of contemporary challenges such as our membership of the European Union, the Human Rights Act and a spread of law making authority known as ‘Devolution’. In this essay I shall set out to assess the impact of each of these challenges upon the immutability of the traditional concept of parliamentary sovereignty in the British constitution.
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
Constitution is a necessary feature as it defines how power is disseminated within the government and establishes the rights of the citizens and the laws and rules for the country. In order to be successful, a country’s should reflect and satisfy every citizen’s needs and interests.
While an uncodified constitution has the advantages of dynamic, adaptability and flexibility to meet the ever-changing needs of the society , it poses much difficulty in pinpointing the ultimate constitutional principle that should provide legitimacy in the British constitution. This results in a battle between two broad schools of thought––political constitutionalism and legal constitutionalism.
Dahl conducted his study on the decision making of the Supreme Court and whether the Court exercised its power of judicial review to counter majority will and protect minority rights or if it used the power to ratify the further preferences of the dominant “national law making majority.” From the results of Dahl’s study he builds numerous arguments throughout his article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker”. In what follows, I will thoroughly point out and explain each of the arguments that Dahl constructs in his article.
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012
A better appreciation of the complexity of this evolution can come through the development of a comparative perspective. Only when we look at other similar roads can we better discern whether ours was more crooked or less arduous and to this end, the precursor to this course i.e. Constitutional Law 1 (UK and US Constitutional Law) took a close look at two other systems of Government. The US system is important as it can arguably boast of the most sophisticated and well-developed constitutional discourse and one of the oldest constitutions. The British system is intriguing, as it successfully exists without the bells and whistles of a written constitution. What exists instead is a very different system of governmental checks and balances and hence its study provides an interesting counter-balance to the US system, which revolves around a written constitution. Both these systems are additionally worth studying, as they have been important contributors to the theoretical evolution of our own constitutional framework.
Not all constitutions are the same as the United States constitution, many other countries are actually quite different except for France. In some countries it is just a description of the form of government and less in depth as the United States constitution. Our constitution is a higher law that describes the limits to our government and protect the citizens rights and promote common good for the country. In unlimited government the constitutions are there but do not lead to much good for the country because it does not constrain those in power. However, the constitution in a limited government like that of the United States does not promise that every rule be followed or obeyed correctly at all times by everybody nor by the government. For it to be obeyed correctly by government correctly, the best way for it to happen is for the citizens to follow the laws and guidelines of the constitution and not threat the government 's power or rules. If that happens and people follow the constitution it should create a civil society and protect everyone 's