Parliamentary Supremacy Judicial Supremacy

The result of The Joint Colloquium on "Parliamentary Supremacy and Judicial Independence ... towards a Commonwealth Model". It brought together parliamentarians, judges, practitioners and academics in order to draft guidelines for best practice relations between Executive, Parliament and Judiciary.

"How should our laws be made and where does final power lie? This question has grown increasingly salient in recent years as the judiciary has pitted itself against Parliament in a series of harmful and absurd rulings. Many of these confrontations have revolved around the Human Rights Act, but far more is at stake. Under our constitution, the legal sovereignty of Parliament ensures that the people themselves are the ultimate political sovereign. When members of the judiciary challenge Parliament, they undermine the ideal of government as a trust for the benefit of all members of society. The readiness of the judiciary to challenge the democratic will of the nation has been harnessed by special interest groups who wish to put their own priorities ahead of those of the wider community. The introduction of no-win, no-fee arrangements has similarly ushered in a period of aggressive litigation by lawyers - driven by the prospect of financial reward - on behalf of the narrow interests of their clients. In this powerful book, Civitas director David G. Green argues that the time has come to challenge a self-serving elite in the legal profession which is encouraging a claims culture based on gaining sectarian advantage. This will mean restoring faith in the UK's parliamentary system of government which, rather than promoting adversarial conflict between minorities and the rest of society, provides the surest way of reconciling clashes of interest. But it also requires the reinvigoration of a civic culture which does not promote victimhood, but looks to the interests of society as a whole, identifying shared interests and pursuing, above all, the common good."-- web site.

This book makes the radical claim that rather than interpreting the Constitution from on high, the Court should be reflecting popular will--or the wishes of the people themselves.

Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.

Both parliament and the judiciary should not exceed their limits as defined by the constitution of India so that harmony can be maintained between the legislature and judiciary. The new socio-economic trends are to be kept in mind before making the legal provisions and their interpretation both in strict and liberal sense. Participatory democratic system must be made effective and there must be proper check on the active interaction between the people and their representatives is responsible for the conflict between the parliament and judicial system in India. Judiciary and the legislature must be strengthened in terms of its special power of judicial review to check and contain the excesses of other two wings of the government.The concept of Judicial Review should not be impaired nor should the Fundamental Rights be reduced in their importance. A provision may be introduced in the Constitution on the lines of the American Constitution, giving supremacy to the Constitution and the laws made there under as is the case with the American Constitution.

"This report sets out the process followed at the Colloquim and contains a copy of what have become known as the Latimer House Guidelines. These guidelines were considered by the Commonwealth Law Ministers at their meeting in Trinidad and Tobabo in May 1999. They hvve been referred to a committee of senior officials for further study and could become a part of Commonwealth processes for monitoring compliance with principles of the Harare Declaration"--Arthur R. Donahoe, Secretary-General.

This book brings together a number of leading experts in the fields of public law, political science and democratization studies to identify ways of making African governments accountable and describe the extent to which these mechanisms work in practice. It presents new knowledge about legal and political developments in a number of African countries, relevant to the policy goal of developing and deepening democratic governance and accountable government on the continent. This book will be of interest to academics, students and practitioners in the fields of public law, public administration, political studies and African studies.