The idea of Parliamentary Sovereignty extensively implies that Parliament has the right to make or unmake any law, and no individual is permitted to override or put aside the law of Parliament. Under parliamentary sovereignty, a legislative body has total sovereignty, significance in comparison to all other government organizations (counting any official or legal bodies as they may exist). Besides, it suggests that the legislative body may change or nullify any former legislative acts. Parliamentary sovereignty diverges from most thoughts of legal audit, where a court may topple enactment considered unlawful. Particular examples of parliamentary sovereignty exist in the United Kingdom and New Zealand.
This argument convinced the judge and the law was considered unconstitutional. Not only did this case violate the first amendment but also the fourteenth amendment. That amendment states that a state cannot enforce a law that should take away the privileges of the citizens of the United States. It also mentions that a state should not deprive any person of life, liberty, or property, without the due processing of law. Especially with the DiCenso case though complete separation was impossible.
Now this ‘concept’ was derived from the constitution by our justices in the supreme court, but it is something that falls under the interpretation of the constitution. The fact that it is never in the constitution, but in parenthetical words, creates split sides on the subject as we talked about. Nevertheless, judicial review is still around and the judiciary doesn’t seem to have any interest on it becoming superseded any time
But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Even he recognized that blatant originalism truly doesn’t work. Simultaneously, non-originalism can run into the problem of over-extrapolation and judicial legislation, a power the framers specifically did not want the Judicial Branch to have. In Federalist Paper 78, Alexander Hamilton explains how the Judiciary is the least dangerous and powerful branch of government: “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the
F. F. Ridley argues that Britain does not have a true constitution as it does not meet the four essential characteristics of (i) ‘it establishes, or constitutes, the system of government and thus it is not part of it’; (ii) ‘it involves an authority outside and above the order it establishes’; (iii) ‘it is a form of law superior to other laws’ and (iv) ‘it is entrenched’. In contrast, the Select Committee on the Constitution argue that ‘the British Constitution, contrary to popular description, is not ‘unwritten’ – a good part of it is written – but it is uncodified’. The conflicting arguments of constitutional writers about whether the British constitution can even be labelled a constitution is reflective of how laypeople regard it. The common man is unlikely to know or understand the elements of the British constitution due to its uncodified nature, whereas in the United States of America the constitutional rights are a commonly known fact and people often refer to their amendment rights, largely due to the clear format demonstrating the fundamental laws and rights. As we withdraw from the European Union and large amounts of legislation is being repealed, replaced or introduced, knowing and understanding the key fundamental rules of Britain is crucial for its citizens and codification would solve
After the passage of the Act there is a lack of agreement regarding the role of judges and their relationship with other organs of government. Both factors are very crucial to determine how much and what kind of judicial independence is required. As common in other constitutional and legislative provisions, the CRA provides no definition of the judicial independence. Section 1 , which seeks to protect judges from the political interference or any other kind of interference in decision making, implies that this protection attaches primarily to the judge hearing a case. The degree of independence possessed by the individual judge in decision making is again has not been articulated and thus open to interpretation and dispute.
‘Do Judges make Law? ’This is one of the most debated topics in the world of Law. Presently, according to the laws of the parliament, Judges are only allowed to uphold the laws passed by the parliament and not to create or make any new laws or whatsoever. But in some cases or circumstances, Judges have been known to amend and change the laws according to the situation if the judges see fit. So does that count as making a new law?
The judges must read between the lines of the Canadian constitution and seek the un-written rules in order to decide to if a law is constitutional or not. This branch, along with judicial review limits the power of the sovereign of the parliament as the parliament is ultimately no longer the sovereign, but rather the constitution itself if the sovereign. Furthermore, with the court having the ability to disapprove the law, the executive, and legislative branch are clearly not sovereigns as they are not the supreme
Public confidence is vital in the impartiality, integrity and independence of the judiciary. Unfortunately, no law can ensure integrity and impartiality as it is the personal attributes. Only some of the safeguards against interference that can be provided by the Constitution. It is cannot be
The Hon’ble Supreme Court overlooked a fact that these amendments were made with a sole reason of removing all the charges put on Smt. Indira Gandhi while delivering the judgement in which it said that Amendment Acts of 1974 and 1975 were constitutionally valid as they were legislative and Parliament had power to amend them. Also, these amendments were never debated because all the opposition leaders were put in preventive detention which restricted them from voting against the amendment or voicing their opinion over them. With the due respect to the Hon’ble Supreme Court, I would like to state that it was ignorant on the part of the Court to say that it was a matter of Parliament and Court cannot do anything about it. The duty of Hon’ble Supreme Court is to uphold the Constitution and it is the Guardian of the same.