Constitutions and the legal

framework
CHAPTER 13
 CONSTITUTION
• A sets out the formal structure of the state, specifying the
power and institutions of central government, and its
relationship with other levels.

• In addition, constitutions express the rights of citizens and in

so doing create limits on government
 Judicial Review
and
Constitutional Courts
 Judicial Review
Empowers ordinary or special courts to nullify both
legislation and executive acts that contravene the
constitution.
 Judicial review:supreme courts vs. constitutional courts
Supreme Court Constitutional Court

Form of review Concrete More abstract

Relationship to other courts Highest court of appeal A separate body dealing with
constitutional issues only

Recruitment Legal expertise plus political Political criteria more important

approval

Formal tenure Until retirement Typically one non-renewable term

(six to nine years)

Examples Australia, United States Austria, Germany, Russia

 Judicial Activism
refers to the willingness of judges to venture beyond narrow
legal decisions so as to influence public policy.
Judicial Restraint
• More conservative philosophy, maintains that judges should
simply apply the letter of the law, leaving politics to elected
bodies.
Judicial independence
and
recruitment
 Judicial Independence
The judiciary shall enjoy fiscal autonomy
(Art.VIII,Sec.3)
Internal Independence
refers to the autonomy of junior judges from their senior collegues
who often determine career advancement .

No law shall be passed recognizing the judiciary when it

undermines the security of tenure.
(Art.VIII Sec.2)
Recruitment
Members of the Judiciary stay in office based on good conduct and
behavior and until they reach the age of 70.

Also should be independence and proven have integrity.

 Administrative Law
sets out the principles governing decision-making by public bodies,
mainly the bureaucracy, and the remedies for breaching such rules.
covers the rules governing this interaction in detailed settings.

Example:
America's Administrative Procedure Act (1946) requires courts to
hold unlawful any agency action that is 'arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
Law in illiberal democracies
Impact of International Law
 Impact of International Law
Is the system of rules which states regard as binding in their
mutual relations. It derives from treaties, customs, accepted
principles and the views of legal authorities.
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