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Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and.
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- Political Constitutionalism - Richard Bellamy - Häftad () | Bokus
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- Political Constitutionalism : A Republican Defence of the Constitutionality of Democracy
He argues that judicial review lacks popular accountability and is thus a form of arbitrary rule.
Its uncommon grasp of both theoretical argument and the empirical complexity of actual political systems makes this book a major contribution to the debate on how democracy can be renewed and the current flight from politics arrested. Providing a robust defence and, indeed, celebration of political constitutionalism Professor Bellamy simultaneously explains what's wrong with legal constitutionalism and offers a valuable corrective to errors in some recent republican writing, which has failed to see that it is to democratic politics, and not to the courts of law, that we must primarily look to secure the republican values of popular sovereignty and non-domination.
Coming at a time of considerable constitutional flux in both Britain and the European Union, Political Constitutionalism will be essential reading for political theorists and constitutional lawyers alike. It is a major contribution to the debate over democracy and constitutionalism. Richard Bellamy argues from the institutional record that we should put our faith in electoral rather than legal process. He offers a powerful challenge that none of us can ignore.
And along the way he provides a masterful overview of recent debates around this crucial issue.
Political Constitutionalism - Richard Bellamy - Häftad () | Bokus
The author's claims are defended by an array of forceful arguments, clearly expounded; and the work provides an impressive overview of current debates over democracy and judicial review No legal constitutionalist could fail to enjoy the stimulating challenge Bellamy's new book provides. Bellamy's outstanding contribution is to demonstrate the implications that the principle of non-domination has for understanding the nature and norms of democracy'. At the same time, he has offered a serious, sustained defense of unicameral parliamentary supremacy This Court 'has been given the responsibility of being the ultimate guardian of the Constitution and its values".
Ironically, it is that constitutional mandate itself that has driven the courts to the rough end of the political stick. This is mainly, as shown above, that role often times entails thwarting or declaring unconstitutional LegislativeExecutive decisions courts.
As such the judiciary is denounced for supposedly fashioning their judgments with the objective of advancing or collusion with other entrenched interests. What emerge below are undertones of an unfolding conflict between legal and political constitutionalism. After a long period of dormancy, South Africa is witnessing a resurgence of the legal and political constitutionalism controversy.
It is worth noting that much of the contestation follows a rise in cases that were capable of and indeed should have been resolved politically. Judicial involvement was a mere confirmation of the natural order of things; people fall back on the judiciary when disputes are not resolved, just as they rely on the electoral system to get rid of politicians.
As will be shown below, a common thread in these attacks is what is perceived as judicial invasion into the political domain. The contention is that, using judicial review as a tool; courts are meddling in the political space through judgments that are designed at chipping off the government's authority and powers. It is feared that the continued intrusion might blur the lines that separate the judiciary from the legislature and Executive. Political constitutionalism, especially the alleged supremacy of the political system over the courts is best manifested through a number of statements by government ministers and the ANC's spokespeople.
Several acerbic statements stand out in this regard.
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For instance in a show of displeasure after losing two major cases in the Constitutional Court 28 -the then secretary general of the ANC, Gwede Mantashe lashed at the courts for "acting as if they were the political opposition' and in so doing seeking to arrest the functioning of Government". Probably the clearest indicator of the government's aversion of judicial review is best summarised by the President of the Republic of South Africa Mr Zuma who, in March is alleged have said: "We are a Government They cannot be elevated to do something they are not supposed to do".
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Of the many incidences 32 that embody the hostilities towards the judiciary, several land mark cases are illustrative. In a criminal case 33 before the Constitutional Court involving the then deputy president Mr Jacob Zuma and another accused, it later alleged that before judgment was handed down Hlophe JP, separately approached some of the judges of the Constitutional Court with a view to influencing the pending judgment.
Subsequently, this was reported to the other judges of the Constitutional Court and a complaint was against lodged to the Judicial Service Commission JSC. To clearly put these averments in perspective and understand the hostilities, a quick review of a few landmark cases is necessary.
Perhaps the case that serves as an apt demonstration of resistance against constitutional court decisions and the fact that the judiciary sometimes fails to rely on the allegiance of political partners to be in order to have their decisions enforced 36 is Minister of Justice and Constitutional Development v The Southern African Litigation Centre. Following public outcry after the government defied the Rome Statute ordering the arrest and detention of President Al Bashir of Sudan for extensive human rights violations in his country, the government chose to cover up its inaction by portraying itself as a victim in the whole saga.
The spin to the "who" debacle was that there was "a drive in sections of the judiciary to create chaos for governance; that's our view The empirical accounts of hostilities towards the judiciary echo the view that legal constitutionalism is a threat to the political hegemony. With a view to countering that phenomenon, the political response has been a nuanced attempt towards the politicisation of the judiciary.
This takes the form of "subtle threats and intimidation of judicial officers to force them into making findings favourable to certain political players". The foregoing also validates the commonly held hypothesis that "constitutional adjudication has traditionally been regarded as 'political'; identifying how judicial decisions, especially those originating in the context of constitutional review, are referred to as 'political' as opposed to 'legal' or the like". However, that hypothesis only serves to expose lack of appreciation of the reality that law and politics are intertwined.
However in spite of such political denunciation it must be borne in mind - to the chagrin of political constitutionalists; that the judiciary will be expected to continue undeterred, to invalidate negative government policies or actions on constitutional grounds. It is not as if the court itself is not aware of the dangers of intruding in the legislative and executive territories.
Political Constitutionalism : A Republican Defence of the Constitutionality of Democracy
The recent case of the Economic Freedom Fighters v Speaker of the National Assembly 48 exhibits a classic scenario of self-examination and a self-criticism that demonstrates that members of the judiciary are mindful of unwarranted judicial activism that seeks tramples on the separation of powers. In the dissenting judgment the Chief Justice of South Africa, Mogoeng Mogoeng expressed disquiet with the majority's directive that the Speaker of the House of Assembly implement necessary processes and mechanisms aimed holding the President Zuma accountable for his conduct and failures highlighted in the report of the Public Protector.
In his admonishment to his fellow judges, he charged that the second judgment in particular had crossed the line, that it was "a textbook case of judicial overreach - a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament".
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- Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy.
- Political constitutionalism.
As such, instead of condemning the dissenting judgment as other quarters of the society clearly did, the Chief Justice's response should be commended for its concern for the separation of powers. It should be celebrated for providing insights into the fact that the judiciary - by criticizing itself - is sensitive to the need avoid descending into the legislature's policy formulation and political arena. Likewise, wanton intrusion into the role of the legislature would have negative externalities of it undermining the "public faith in the objectivity and detachment of the Court, without which the Court will be reduced to an impotent body, unable to perform those important, indeed vital functions which properly fall within its scope".
For, its moral authority without which it would cease to enjoy legitimate public confidence and ready compliance with its decisions by all, owes its existence to its predictable and self-evident execution of its mandate without any apparent fear, favour or prejudice. The author's claims are defended by an array of forceful arguments, clearly He is the author of five books, numerous articles and book chapters and has edited over 20 volumes including The Cambridge History of Twentieth Century Political Thought with Terence Ball, Cambridge, and editions of Beccaria and Gramsci in the Cambridge Texts in the History of Political Thought series.
Introduction; Part I. Legal Constitutionalism: 1. Constitutional rights and the limits of judicial review; 2. The rule of law and the rule of persons; 3. Constitutionalism and democracy; Part II. Political Constitutionalism: 4. The norms of political constitutionalism: non-domination and political equality; 5. The forms of political constitutionalism: public reason and the balance of power; 6. Bringing together norms and forms: the democratic constitution; Conclusion.