Judiciary

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These are critical when it comes to achieving an understanding of the government providing as they do a power map containing key political principles and rules

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Constitutions.

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It is a power map containing a set of principles and rules outlining the structure and powers of a system of government describing its institutions in the manner in which they were unrelated to one another. And typically describing both the limits on governmental power and the rights of citizens.

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Constitution.

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A document or a set of documents that outlines the powers institutions and structure of government as well as expressing the rights of citizens in the limits on government

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Constitution

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Its purpose is to substitute a government of laws for a government of men.

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Rule of law.

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It is the idea that society is the best governed using laws to which all the residents of society are equally subject regardless of their status or background.

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Rule of law.

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A constitution that is set out in detail within a single document.

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Codified constitution.

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Constitutions of britain in New Zealand that are spread out among several sources.

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Uncodified constitution.

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.It is a constitution that is set out in a single document

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Codified

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It is one that is spread among a range of documents in is influenced by tradition and practice.

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Uncodified constitution

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This is a 2 ways we can look at constitutions.

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.Historical or political.

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a constitution that is more difficult to change

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rigid constitution

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a term referring to procedure which set a higher level and wider spread of support for amendments than is the case for ordinary legislative bills

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entrenchments

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a constitution where changes can be made more easily

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flexible constitution

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the existence of special legal procdures for amending a constitution

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entrenchment

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One that is entrenched, requiring a more demanding amendment procedures

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Rigid constitution

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one that can be amended more easily, often in the same way that ordinary legslation is passed

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flexible constitution

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the power of courts to nullify any laws or actions by the government officials that contravene the constitution

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judicial review

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the highest court within a jurisdiction

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supreme court

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a process donee by supreme courts as they ask whether, given the facts of a particular case, the decision reached at lower level was compatible with the constitution

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concrete review

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process mainly done by constitutional courts as they judge intrinsic constitutional validity of a law without limiting themselves to the particular case

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abstract review

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judgments made on the constitutional validity of law in the context of a specific case

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concrete review

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an advisory but binding opinion on a proposed law, based on a suspicion of inconsistency with a constitution.

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abstract review

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this entitles a court to try a case at its first instance

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original jurisdiction

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the power of a court to review decisions reached by lower courts

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appellate

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the view that judges should apply the letter of the law, leaving politics to elected bodies

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Judicial restraint

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the willingness of judges to venture beyond narrow legal reasoning so as to influence public policy

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judicial activism

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refers to the autonomy of junior judges from their senior colleagues, who often determine career advancement. where this autonomy is limited, judicial initiative may be stifled.

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internal independence

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three models of judicial decison making

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legal

attitudinal

strategic

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this is the most traditional model of decision making whih assumes that judges are driven in their deccisions by an understanding of the law

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legal

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this assumes that judges are driven by politics and ideology

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Attitudinal

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this regards judges as sensitive to the likely reactions of other political actors and institutions to their proouncements

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strategic

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three systems of law

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common law

civil law

religious law

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judicial rulings on matters not explicitly treated in legislation, based on precedents created by decisions in specific cases

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common law

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laws enacted by a legislature

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statute law

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judicial rulings founded on written legal codes which seek to provide a single overarching framework for the conduct of public affairs

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civil law

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the system of islamic law based on the quran and on the teachings and actions of muhammad which funcions alongside western law in most islamic states

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Sharia law

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three main types of rules

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moral precepts

customs

laws

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rules of behaviours based on the ideas of right and wrong

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moral precepts

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rules of behaviour based on long established and widespread ways in which most people actually behave

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customs

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body of rules emanating from government and enforceable b courts

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law

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six main types of law

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constitutional

statutory

administrative

common

equity

roman

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a law based on a body of fundamentla rules, written and unwritten by which its government operates

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constitutional law

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law that consist of all the rules enacted by the legislature that command or prohibit some form of behaviour

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statutory law

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rules and regulations within certain specified limits

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administrative law

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a law that generally follows the princpile of stare decisis

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common law

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two classifications of law based on subject matter

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criminal and civil

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law that deals with crimes

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criminal law

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law that deals with wrongs committed by one private individual against another but not considered to be damaging to the whole community

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civil law

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the power of the court that involves settling disputes between two parties

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dispute settlement

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the power of a court to render a legislative or executive act null and void on grounds of unconstitutionality

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judicial review

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two basic systems of justice

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adversarial and inquisitorial

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it is a justice system in which a neutral court hears the arguments and evidence presented by the plaintiff and the defendant and akes its decisions on the basis of what is heard

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adversarial

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a system in which the court takes an active role in obtaining evidence and questioning witnesses as the basis for its decisions

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inquisitorial system of justice

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Consider to be the lowest courts on the judicial ladder

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Preliminary courts

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A court authorised to try most civil and criminal cases

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General trial courts

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Intermediate courts that mainly hear appeals from the trial courts and rarely or never act as trial courts.

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Intermediate courts of appeal.

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It is the final court of appeal and is considered to be the national supreme.

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Supreme courts

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Full fledged members of the legal profession.

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Lawyers.

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The only means to remove a judge from their office.

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Impeachment

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That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.

• A written instrument by which the fundamental powers of government are established, limited, and defined and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic.

• Supreme written law of the land

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Constitution

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The Constitution as a municipal law (describe)

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Binding only within the territorial limits of the sovereignty promulgating the constitution

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constitution vs. Statute

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Permanence and Generality  A constitution differs from a statute, it is intended not merely to meet existing conditions, but to govern the future. It has been said that the term ‘constitution’ implies an instrument of a permanent nature.

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Philosophical View of the Constitution

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• The Constitution is a social contract. (Marcos v. Manglapus)

• The Constitution as a political document may be considered the concrete manifestation or expression of the Social Contract or the decision to abandon the ‘state of nature’ and organize and find a civil society or State.

• As a social contract, the Constitution, is a contract between and among the people themselves and not between the government and the people.

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The purpose of the Constitution (pea)

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prescribe the permanent framework of a system of government

assign to the several departments their respective powers and duties,

establish certain fixed principles on which the government is founded

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Why would a society generally committed to majority rule choose to be governed by a document that is difficult to change?

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prevent tyranny of the majority

Society’s attempt to protect itself from itself

Protecting long term values form short term Passion

Commit oursleves to amore legitimate and durable principle or value

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PSPC

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Classifications of Constitutions

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I.Rigid or Flexible

II.Codified or Uncodified (Written or Unwritten)

III. Conventional or Unconventional (Enacted or Evolved

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Qualities of a good written Constitution

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Broad

Brief

Definite

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provides for the organization of the entire government and covers all persons and things within the territory of the State and also because it must be comprehensive enough to provide for every contingency.

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Broad

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It must confine itself to basic principles to be implemented with legislative details more adjustable to change and easier to amend.

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Brief

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To prevent ambiguity in its provisions which could result in confusion and divisiveness among the people

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Definite

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Essential Parts of a Written Constitution

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Constitution of Government, liberty, Sovereignty.

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The series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate. (ex. Art VI, VII, VIII and IX)

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Constitution of government.

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The series of proscriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. (Ex. Article III)

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Constitution of liberty.

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pThe provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about. (Ex. Art XVII)

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Constitution of sovereignty.

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What is the difference between construction and interpretation

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Construction vs. Interpretation- Has the same purpose  to ascertain and give effect to the legislative intent or meaning of the text - Distinction, however, is on the use of tools or aids. - Interpretation  use of intrinsic aid; Construction  use of extrinsic aid

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3 ways to interpret the law.

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•Verba Legis – plain meaning rule

• Ratio legis et anima – interpretation according to the spirit of the law

• Ut magis valeat quam pereat – to be interpreted as a whole

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refers to the position or practice that government be limited by a constitution. The doctrine or system of government in which the governing power is limited by enforceable rules of law, and concentration of power is limited by various checks and balances

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Constitutionalism

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If a law violates any norm of the Constitution, that law is null and void; it has no effect.

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Doctrine of Constitutional Supremacy

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for a law held unconstitutional is not always wholly a nullity

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Operative Fact doctrine

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While a law is recognized as unconstitutional, its effects, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play.

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Operative fact doctrine

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refers to the power of the courts to test the validity of governmental acts in light of their conformity with a higher norm (e.g. the constitutio

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Judicial review

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not an assertion of superiority by the courts over the other departments, but merely an expression of the supremacy of the Constitution. Constitutional supremacy produced judicial review, which in turn led to the accepted role o f the Court as “the ultimate interpreter of the Constitution”

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Judicial review

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Basic Principles of the consti

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1. The Constitution is the supreme law of the land – legislation direct from the people acting in their sovereign capacity

2. Being the supreme law of the land, it is the symbol and monument of the people’s will – the embodiment of our collective will and aspirations

3. The Constitution outlines the infrastructure of the government –fundamental powers of the government are established, limited, and defined, and by which these powers are distributed

4. The Constitution must be obeyed by all – the governed and governors

5. The Courts are the ultimate guardians of the Constitution

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Ssoou

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What power is given to courts?

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Courts are given judicial power, nothing more. Hence, by the principle of separation of powers, courts may neither attempt to assume nor be compelled to perform non-judicial functions.

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right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. This is a power to apply the laws to contests or disputes concerning legally recognized rights or duties between the State and private persons or between individual litigants brought before the judicial tribunals

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Judicial power

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Scope: The exercise of judicial power is essentially categorized into two

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1) Adjudicatory power

2) Judicial Review

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To settle actual controversies involving rights that are legally demandable and enforceable; and

To determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government

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Adjudicatory power

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Power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution. This is not an assertion of superiority by the courts over the other departments but merely an expression of the supremacy of the Constitution (Angara v. Electoral Commission).

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Judicial review

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Involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from hypothetical or abstract difference or dispute. There must be contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.

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Case/controversy

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Involves parties with real conflicting legal interests.

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declaratory judgement

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response to a legal issue posed in the abstract in advance of any actual case in which it may be presented.

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Advisory opinion

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Collegial Nature of the Supreme Court

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The Court acts as a collegial body as it exercises judicial power through the collective action of its individual members. While most of the Court’s work is performed by its three divisions, the Court remains one court –single, unitary, complete and supreme. Flowing from this is the fact that, while individual justices may dissent or only partially concur, when the Court states what the law is, it speaks with only one voice. Any doctrine or principle of law laid down by the Court may be modified or reversed only by the Court en Banc.

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the power and authority of a court to hear, try, and decide a case; administer a kind of relief; and exercise power over parties and over properties subject to the litigation.

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Jurisdiction

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What is the role of the legislature in the judicial process?

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1) Defining such enforceable and demandable rights and prescribing remedies for violations of such rights

2) Determining the court with jurisdiction to hear and decide the controversies or disputes from legal rights

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Composition of the Supreme Court

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The SC is composed of a Chief Justice and 14 Associate Justices.

Divisions: They may sit En Banc or at its discretion, in divisions of 3, 5, or 7 members, and any vacancy shall be filled within 90 days from the occurrence thereof.

Tenure: Supreme Court  hold office until they reach 70 years of age or become incapacitated to discharge their duties

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How many votes are required to decide a case heard En Banc or in division?

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When the SC sits en banc, cases are decided by the concurrence of the majority of members who actually took part in the deliberations on the issues in the case and voted thereon. Thus, since a quorum of the SC is eight, the votes of at least 5 are needed and enough, even if it’s a question of constitutionality.

This is a liberalization of the old rule, which required a qualified majority of a definite number. Moreover, those who did not take part in the deliberation do not have the right to vote.

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Are decisions of a division of the SC appealable to the En Banc?

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No. Decisions or resolutions of a division of the Court, when concurred in by the majority of its members who actually took part in the deliberations on the issues in a case and voted thereon is a decision or resolution of the Supreme Court itself. The SC sitting en banc is NOT an appellate court vis-à-vis its divisions, and it exercises no appellate jurisdictions over the latter. The only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc.

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It is a constitution that is drafted by a constituent body within a definite period of time.

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Enacted or conventional.

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It is a constitution that came into existence through evolution which means it undergone through a long period of historical and cultural conditioning and is more of a product of accretion rather than through systematic process.

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Evolved or unconventional