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Vii world congress of the international association of constitutional law

VII WORLD CONGRESS OF THE INTERNATIONAL ASSOCIATION OF
CONSTITUTIONAL LAW
RETHINKING THE BOUNDARIES OF CONSTITUTIONAL LAW
Workshop: Judicial review of politically sensitive questions
Political questions in the Court:
Is "Judicial self-restraint" a better alternative than a "non justiciable"
approach?
The argument that “the issue is not a legal issue, but rather a clear political
issue” confronts two concepts where there is no basis for such confrontation. The fact
that a matter “is clearly political” cannot negate its existence as a “legal matter”.
Every matter is a “legal matter”, in the sense that the law takes a position on whether it
is permitted or forbidden”

Abstract
Judicial review of sensitive political questions may be treated in a number of forms. Imagine a "spectrum", at one end of which there is a constitutional barrier to any kind of Justice Barak (former President of the Supreme Court of Israel) in the Ressler case (HCJ 448/81 Ressler v. Minister of Defense 35 P.D (1981) 81). judicial intervention, such as an explicit constitutional norm withdrawing certain kinds of issues from the court’s jurisdiction. At the other end, there is regular judicial review for all political questions. Only rarely do states and their judiciaries position themselves clearly at either of the spectrum’s extremities, although examples can be found of both approaches i.e. the approach that constitutionally negates the possibility of judicial review of political issues, and the approach that regards political questions as “regular” legal questions, hence admitting of judicial review. Between the two extremities, there are some intermediate approaches. Each state gives its own particular response to the “political question” doctrine, determining its place on the spectrum of judicial review, based on its own specific balancing formula - the product of the specific variables of that state. These variables include the status of the constitutional court, its relative position in the system of state authorities, its power, and its degree of independence. It also depends on custom and political culture. On a formal level it is also determined by normative and constitutional arrangements, which occasionally exclude defined areas from the court’s jurisdiction. According to one of the intermediate possibilities, no constitutional barrier to judicial intervention is found, and therefore it is incumbent on judges themselves to establish mechanisms that enable them to avoid adjudicating political questions. This model draws very near to the end of the spectrum which prevents judicial intervention in political questions, and will henceforth be referred to as the non-justiciable approach.
Another approach, closer to the position endorsing regular judicial review, allows the judges themselves to establish criteria for intervention on political questions, but the criteria established differ from the criteria applied in judicial review of acts of other branches of government. This approach – of “judicial self restraint” - does not
The idea of a “spectrum” is taken from Justice Barak’s article, “The Parliament and the Supreme Court – Towards the Future, 45 HaPraklit, (2000) 5, 8 (Hebrew). Regarding the question of whether there is judicial review on internal parliamentary acts, Professor Barak answers that “in this matter different approaches have been adopted in different states. At one end of the spectrum there is England, where the Court does not review actions of this kind when taken by the various parliamentary organs. At the other end of the spectrum there is Germany, where the Constitutional Court is empowered to examine decisions and determine whether they are in accordance with the constitution…." necessarily prevent judicial review on political questions, but the review is more “restrained” and more rarely exercised. While the judge may regard himself as authorized to adjudicate a certain question, given that he regards a certain question as “justiciable”, he may nonetheless reject a petition on its merits in view of its failure to satisfy certain criteria required for judicial intervention. In this paper I argue that although the modern approach to political questions in the court seems to be the "judicial self restraint" approach, this model should be reconsidered and its problems disclosed. Both approaches will be presented, while exemplifying an issue usually classified as a "political issue" in foreign systems: judicial review of internal parliamentary procedures. In this issue, an examination of comparative law in states such as Israel, Germany, and Spain shows that the claim of non-justiciability has by and large been abandoned in favor of the “constitutional” judicial review, exercised cautiously, with judicial self-restraint. The central idea emerging from the case law is that the doctrine of constitutional supremacy dictates the judicial overseeing of constitutional organs, even within the framework of their parliamentary activities, and even with respect Jurisdiction (authority) and Justiciability
The claim that a political question is “non-justiciable” leads to the result by which the court does not see itself as authorized to intervene in the issue brought before it. The first question to be addressed is whether one can distinguish between the concept of “lack of jurisdiction” (or authority) and the concept of “non-justiciability”. Prima facie, the distinction is impossible because having acknowledged that the political nature of the question renders it non-justiciable, the court is inexorably lead to refuse to adjudicate it, This approach reminds us of the judicial review of legislation, which requires fulfillment of certain conditions established in the constitution, such as the requirement of the Canadian
Charter concerning the review of the legality of legislation that violates rights guaranteed by the
Charter. A similar approach is adopted in Israeli law, regarding the invalidation of laws that
violate rights protected in the framework of the Basic Law. For elaboration on the subject, see Y.
Zamir & A. Zysblat, Public Law in Israel (Oxford University Press 1996); see also (by author) S
Navot, The Constitutional Law of the State of Israel (forthcoming by Kluwer, June 2007).
Nonetheless, Israeli law has attempted to distinguish between the “formal jurisdiction” question, and the question of justiciability. This distinction is possible if the statutory arrangements in the legal system contain a definition of “jurisdiction”. For example, if a specific law confers formal jurisdiction to intervene in a dispute, which may be of a political character. Were the court to refrain from addressing that dispute, its refusal would not flow from the court’s lack of jurisdiction over the dispute but rather because of its “non-justiciability”. With respect to parliamentary proceedings in Israel, it was ruled that the Israeli court has formal jurisdiction to intervene, by force of section 7 of the Courts Law, 1957. This law states that the Supreme Court - in its capacity as the High Court of Justice- is authorized to issue orders against “persons and bodies carrying out public functions under law”. Accordingly, the court ruled that it had formal authority to intervene in the Knesset (Israeli Parliament) proceedings. Even though the jurisdiction provided by this section does not explicitly relate to internal Knesset proceedings, the Supreme Court nonetheless concluded that these proceedings fall within This was the basis for Justice Kahan’s comment, which is cited through all later Israeli rulings, namely that the problem of judicial intervention in internal proceedings is not one of jurisdiction, but rather one of “justiciability”, and as noted by Justice Barak, English Law provides an instructive example regarding lack of jurisdiction with respect to internal parliamentary proceedings. See Section 9 of the Bill of Rights, which is discussed below. Today, section 15d of Basic Law: The Judiciary, which confers the Supreme Court sitting as the High Court of Justice, the authority to issue orders against any person “carrying out a public function under law”. In the words of the Deputy President, Justice Y. Kahan, in the Platto Sharon case (HCJ 306/81 Platto Sharon v. Knesset Committee, 35 (4) P.D. 118, at p. 125: “The problem is not one of authority, but rather of how the High Court of Justice exercises its authority” Deputy President, Justice Y. Kahan, in the Platto Sharon wrote at p.124: “there can be no doubt that any Knesset Committee is a body, which fulfills public functions by law, and therefore, according to section 7 (b)(2) of the Courts Law, the High Court of Justice is authorized to issue orders against the Knesset Committee”. It bears mention that Justice Landau, who gave the minority ruling, criticized this view stating that: “My honorable colleague, the Deputy President, writes that the response to the question [the question of whether the court is authorized to judicially review the decision of the Knesset committee” – S.N], is in the affirmative, based on the provisions of section 7 (b)(2) of the Courts Law. I am not a partner to his certainty, and I suggest that we not presume to resolve the issue, without having heard full pleading on the matter. …”, ibid, p. 134 “the question is not one of jurisdiction, but rather one of discretion.” Thus according to the distinction endorsed by Israeli law, the question of jurisdiction is determined by the provisions of the particular statute, whereas the question of justiciability is given to the English Law provides the best demonstration of the principle of the lack of jurisdiction for the courts to adjudicate issues relating to parliamentary proceedings. In England the well-settled rule is that courts have no jurisdiction preside over the decisions of the Parliament. In Bradlaugh v. Gosset, which is frequently cited in Israeli rulings, the English court held that statutes regulating parliamentary proceedings are not subject to judicial supervision. The Parliament and its members have exclusive authority to interpret the internal rules of the Parliament at its own discretion, and the courts will not interfere even if the MKs ignore their own guidelines for internal proceedings. The Parliament’s right to make the final decision on all matters is one of its absolute Both in Israeli law and in English law the question of “absence of jurisdiction” is explicitly addressed by the normative arrangements in each of the states, and the claim is distinct from the claim of non-justiciability. English statutory law regulates situations in which there is no jurisdiction for judicial supervision of parliamentary proceedings, Ressler, supra note 1, This approach was the subject of criticism of Professor Kretzmer, who claims that: “The difficulty with Kahans’ reasoning is not the principle behind it, but its application in practice. For the basis of Kahan s’ reasoning is the distinction between the question of jurisdiction, or the boundaries of statutory authority, and question of discretion. The problem is that the line between those issues which properly belong to the question of jurisdiction and those which do not is notoriously difficult to define”. In Israeli legal literature there is also an approach which argues the importance of retaining the distinction between the question of jurisdiction and those given to the discretion of the court, including the issue of justiciability. D. Kretzmer, "Judicial Review of Knesset Decisions”, 8 Tel-Aviv University Studies in Law (1988) 95.at p. 152 Bradlough v.Gosset 12 QB 271 (1884) …”I think that the house of commons is not subject to the control of her majesty’s courts in its administration of that part of statute law which has relation to its own internal proceedings”. Y.S Zemach. – Political Questions in the Courts (Wayne State University Press Detroit,
1976). E. May Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22 nd
ed., London, 1997)
whereas in Israeli law- on the contrary- there is explicit jurisdiction for judicial review of The Non-justiciable Approach
According to this approach, the resolution of disputes bearing a political character is the task of a political organ and not the judicial branch. Involving the judiciary in disputes of this nature violates the principle of separation of powers in a democratic regime, in which political decisions are adopted by the elected political authorities, and is also detrimental to the courts themselves. The judge’s basic instinct should therefore be to distance himself from decisions of a political nature. President Aharon Barak (ret) of the Israeli Supreme Court classified “justiciability” as one of the legal tools utilized by the court to close its gates to actions which are not suited for judicial resolution. A “non- justiciable matter” is a matter for which there are no legal criteria upon which a judicial resolution can be based, or a problem which is not suited or appropriate for the The issue of the political question and its non-justiciability has been the subject of prolific writing. Perhaps one of most outstanding speakers on the subject is American Judge Brennan who wrote the judgment in Baker v .Carr. The judge stressed that a dispute raises a “political question” if in respect thereof there is “a lack of judicially discoverable and manageable standards for solving it". This judgment was a first attempt to introduce clarity into the doctrine of the political question, and in time became the most authoritative source for dealing with this topic. Judge Brennan framed a number of formulae that could assist in determining whether a particular matter was a political question, and therefore non-justiciable: As opposed to the judicial review of legislation, which is not explicitly regulated in the HCJ 448/81 Ressler v. Minister of Defense, supra note 1 Y.S Zemach,. Political Questions in Courts, supra n.10 at p.145
(1) Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or (4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements However, the American doctrine has evolved significantly since the Brennan case. Initially it was a threshold test which prevented adjudication of subjects for which the court felt it lacked the tools, or which under the constitution were in the jurisdiction of other sovereign bodies. As such the doctrine was the result of the principle of the separation of powers. Over the years however, more and more exceptions to the rule were created, and today the political question doctrine seems to have disappeared from The American “political question” doctrine was not absorbed in Israeli law. Israeli judges have generally rejected the non-justiciability claim regarding political questions, choosing to adopt a more flexible format which confers a large measure of discretion to the court, thereby enabling judicial intervention for the adjudication of political questions. Addressing the issue, Justice Barak wrote that: “the American doctrine concerning political questions is particularly problematic. Its legal foundations are shaky and it is largely based on irrational reasons”. We will see below that the Israeli court’s See Nixon O.Brien v.Brown, 409 U.S. (1972); Powell v.McCormack 396 US 486 (1969) ;Nixon v.United States, 506 U.S. 224 (1993) T. Koopmans, Courts and Political Institutions: A Comparative View, (Cambridge,
M. Tushnet, "Symposium: Baker V. Carr: A Commemorative Symposium: Panel I: Justiciability and The Political Thicket: Law And Prudence In The Law Of Justiciability: The
Transformation And Disappearance Of The Political Question Doctrine", 80 N.C.L. Rev. 1203
(2002). Koopmans T., Courts and Political Institutions: A Comparative View , ibid.
rejection of the non-justiciability claim resulted, in the court being lead into the heart of the political scene, as a final arbitrator of public-political issues. 3. The “Judicial Self Restraint” Approach
As mentioned, Israeli law did not adopt the American approach of the non- justiciability of political questions. The foremost spokesman for the Israeli "self-restrain" approach was Supreme Court former President, Aharon Barak. According to Barak, any act is liable to be “caught” by the legal norm, and there is no act for which there is no applicable legal norm. There is no “legal vacuum”, in which acts are performed without the law taking a position on them. The law spans all actions. Barak’s view is that the nature of the act - political or other - is irrelevant. Every act, whether political or a matter of determining policy, is contained within the world of law, and is subject to a legal According to Israeli approach, the political nature of an act does not negate its legal nature, but the legal character of the executing body will affect the nature of the rules applied by the court. In the words of Justice Barak: “The judiciary assesses the “legal aspect of politics, not its wisdom. Accordingly, when a judge assesses the legality of a political determination, he is not concerned, neither positively nor negatively – with the merits of that determination. He doe not make himself a part of it. He does not assess its internal logic, but only examines its legality according to legal standards. In doing so he It bears mention that Justice Barak disagrees with Justice Brennan’s comments in Baker v. Carr. Hence, regarding the first example, i.e. that the determination of the question is in the realm of the political authority, Justice Barak argues for a distinction Justice Barak for example addressed this issue as follows: “Conceivably, the decision to go to war or to make peace is not subject to the normal rules governing administrative discretion. In these exceptional cases the petition will be dismissed not because of the absence of a legal norm, but due to absence of a prohibitive norm and the existence of a permitting norm; in other words, due to a lack of grounds. The act is not non-justiciable, but rather justiciable and legal". Ressler, ibid between (a) the legal question of the jurisdiction of the political authority and whether this jurisdiction was lawfully exercised, and (b) the question of whether the political authority chose the appropriate solution from among a number of lawful solutions. “Determination of the first question (a) is generally the role of the court, within the context of its power and duty to determine the nature of the statute. When a particular statute empowers a governmental authority, it thereby empowers the court to interpret it, determine its scope, and to decide whether its power was lawfully exercised. Hence submission of a particular act to governmental authority does not means that the issue of the lawfulness of that act was also submitted to the The main argument by Justice Brennan, – that the principle of the separation of powers dictates the avoidance of adjudicating political questions - was also rejected by Justice "According to the modern approach of separation of powers, reciprocal relations exist between governmental authorities, and it is legitimate that a political decision of the political, governmental body, whether it is the Knesset or the Government, be subject to judicial review. Indeed, the modern approach does not separate between the powers, so that each power stands on its own; it creates a link and balance between the powers, so that the judiciary judicially and legally supervises the other authorities. It is only natural that the political branch takes into account political considerations, and it is also only natural that the judiciary examines whether this political consideration is lawful. One of the most recent, and outstanding examples of this approach, was the Supreme Court’s involvement in the issue of the Israeli disengagement from the Gaza strip. The The withdrawal (disengagement) from the Gaza strip, including the dismantling of Jewish settlements and evacuation of Jewish settlers, was the main Israeli Government’s policy during the years 2004-2005. Since the Six-Day War in 1967, not a single Jewish settlement had been removed from any of the areas occupied in the War – neither in Judea and Samaria, nor in the Golan Heights, nor in the Gaza strip. The plan sharply contradicted what was perceived the “Likud” party platform, the main party in the government's coalition. For further reading see, by High Court undertook a substantive examination of all the petitions relating to the disengagement. It exercised close and ongoing supervision of the process; it confirmed and legitimized all of the decisions, and was a full and active partner to the Disengagement Plan, defending both its legality and its constitutionality at all stages. Conceivably, another court in another place would have perhaps declined to intervene or even give judicial consideration to this kind of state-political decision, which was also the source of a deep political-public controversy. Not so the Israeli Court, which became a full and senior partner to the entire plan. The Disengagement Plan could not have been executed without the legal backing of the Supreme Court. Notwithstanding its political nature, at the very beginning of the proceedings, the High Court rejected the claim that the question of the constitutionality of the Evacuation-Compensation Law was “non-justiciable” because of its political character. Conceivably, the High Court differed from the courts of many other states, which almost invariably recoil from substantive judicial consideration of these kinds of questions. In accordance with its constitutional credo, the High Court undertook a substantive examination of all the petitions relating to the Disengagement. The Evacuation-Compensation Law and the other government actions necessitated by its implementation were all approved by the High Court, but only after substantive, comprehensive and incisive deliberations. President Barak was at the helm of almost all of the rulings and wrote almost all of the major decisions on the matter himself, with the aim of ensuring uniformity. Regarding all of the decisions it is submitted that conceivably, the dismissal of the petitions after adjudication on their merits created a semblance of legal approval for acts that may well have been essentially non-legal matters. The Court affirmed the Government’s decisions, but only after (and subject to) its examination on a substantive level. Perhaps, it would have been more appropriate, in terms of judicial policy, to reject some of the petitions on the “classical” but efficient author, S. Navot, The Israeli withdrawal from Gaza - a Constitutional perspective European
Public Law
Vol. 12 Issue 1 (March 2006) 17
The Disengagement Plan (Implementation) Law, (otherwise known as the “Evacuation- Compensation Law”), prescribed the guidelines for the evacuees’ compensation. grounds of “non-justiciability”. I argue that not in every case were the legal aspects of a nature that justified judicial intervention. This is a nice illustration of the approach endorsed in Israel: The court reserves its discretion to intervene in political questions, even if at the end of day it does not intervene. The result is that the Supreme Court confirms the decision of the governmental authority, having examined it on its merits. It is interesting to note that ultimately the court dismissed most of the petitions submitted on issues regarding which it was claimed that they are of a political nature. However, as indicated in the Disengagement case, the petitions were only dismissed after being adjudicated on their merits by the Supreme Court. In this manner the Supreme Court is occasionally regarded as the body that grants final “confirmation” to political decisions. Obviously, this provides an incentive for the filing of appeals on almost every decision of political bodies – one of the most outstanding shortcomings of this approach. For example, the court examined the Prime Minister’s discretion in his dismissal of his Ministers. Before presenting the Disengagement Plan for Knesset ratification, Ariel Sharon required governmental approval for the plan. Two Ministers of Sharon’s government, members of the right wing “National Union” party, were expected to vote against the plan. Consequently, Sharon decided to remove them from office, utilizing his statutory prerogative under section 22 (b) of the Basic Law: The Government. The Ministers who had been fired, challenged the legality of the Prime Minister’s decision in their petition to the High Court, (H.C. 5261/04 Adv. Yossi Fux v. The Prime Minister of Israel) thereby confronting the Court with a highly sensitive question. They argued that their political views indeed contradicted the policy that Sharon was attempting to realize. But this does not confer the Prime Minister with the authority to remove them from office. The Prime Minister’s decision to fire them was therefore illegal, especially since the policy in dispute, actually deviated from the Basic Guidelines of the Government in which the Knesset had expressed its confidence. The petitions were unanimously rejected, but the case was considered "on the merits" and was not rejected due to the question being a "political question". Notwithstanding the unanimity of the High Court decision, the judges criticized the Prime Minister’s exercise of his statutory power and established new parameters for the exercise of his discretion. President Barak ruled that the fundamental principles of constitutional law compel the conclusion that the Prime Minister does not have absolute discretion and may remove a minister from office only where he is convinced that it will promote the Government’s ability to function properly. The Prime Minister operates within certain parameters of reasonability and as long as his decisions fall within those parameters, the Court will avoid interfering with his decision. 4. An Example of the Different Approaches: Judicial Review of Internal
Parliamentary Proceedings
The questions surrounding judicial review of internal parliamentary proceedings provide an interesting example of the distinction between the theories of justiciability and At the basis of the theory that parliamentary acts are exclusively subject to internal proceedings determined by the parliament itself, lies the concept of parliamentary independence. The concept originated in England during the Middle Ages, and related to the freedom of action demanded by the Parliament, from intervention on the part of the monarchy and the courts. The development of the English parliament was accompanied by a parallel decrease in the authority of the monarchy, giving rise to hostility between the two sources of authority. The Parliament’s intervention in subjects previously regarded as belonging to the King’s jurisdiction intensified the “war”, between them, climaxing in the “glorious revolution” of 1688. The enactment of section 9 of the Bill of Rights perpetuated the independence of the English Parliament: .that the freedom of speech and debates or proceedings in Parliament ought not to ``be impeached or questioned in any court or place out of Parliament. Parallel to and as a part of the fortification of the Parliament’s Independence, English Law endorsed the principle asserting that internal proceedings were to be adjudicated exclusively within the House. As stated above, the judgment providing the sharpest expression of the English approach according to which the court has no authority to intervene in parliamentary proceedings is Bradlaugh v. Gosset . As mentioned, the House of Lords rejected the petition, stating that the issue was part of the “parliamentary proceedings” over which the Parliament was the sole judge. Justice Stephen added that even were the Parliament to enjoin a House Member from performing actions incumbent R.Reinstein & H.A. Silvergate “Legislative Privileges and the Separation of Powers” 86 Harvard L.Rev. (1973) 1113, 1122-1123 Bradlough v.Gosset 12 Q.B.D . 271, 1883-1884 upon him by law, and even were the Parliament to banish him from the House, the court would not have the authority to intervene: "the House of Commons is not subject to the control of… (the) courts in its administration proceedings… Even if the interpretation should be erroneous (the) court has no power to interfere with it directly or indirectly" The English approach as expressed in this case has not changed much over the years, although recently the court introduced greater flexibility into its construction of section 9 of the Bill of Rights, and this development has been viewed as derogating from the principle of parliamentary sovereignty over parliamentary proceedings. The enactment of the Human Rights Act 1998 and the exposure of English law to the idea of judicial review of legislation will in the long run perhaps influence the possibility of reviewing internal parliamentary proceedings. Today however, it is precisely the explicit provisions of the Human Rights Act that constitute the barrier to the possibility of such review.
The Interna Corporis Acta doctrine under which a judicial body does not intervene in an internal parliamentary proceeding has its origins in 19th century Germany. Its basis Ibid, 278-286. See also :E. May Treatise on the Law, Privileges, Proceedings and Usage of
Parliament
supra note 10.
See Pepper v. Hart (1993) 1 ALL ER 42. For a discussion of that case see also: May, Loveland, in his book Constitutional Law: A Critical Introduction (London, 2nd ed.,
2000) 234 ,titles the chapter dealing with this topic as “Opening Pandora’s Box . In his view : “.its greater importance lies in the court’s implicit claim that it, rather than the two houses, is the only body possessing the constitutional competence to determine the meanings of privilege. This means that the courts are in effect denying that the Commons has any authority to claim immunity from orthodox understandings of parliamentary sovereignty and the rule of law… Pepper v. Hart adds considerable force to arguments which attack the doctrine of parliamentary sovereignty itself…” Even though section 6 of the Human Rights Act (which prohibits any public authority from acting in a manner that violates rights secured by the Convention) explicitly excludes the
houses of Parliament from the definition of “public authority”. The meaning of this section
was discussed by R. Clayton & H. Tomlinson in their book: The Law of Human Rights
(Oxford, Vol. 1, 2000) 204 ,where they wrote that “The section. excludes form the ambit of
the legislation any acts or omissions of the legislature itself as well as any person exercising
‘functions in connection with proceedings in Parliament’.The aim of section 6 of the Human
Rights Act was to “underpin parliamentary sovereignty” in the words of the Lord Chancellor
himself. See R. Gordon & T. Ward Judicial Review and the Human Rights Act (London, 2000)
46
is the English “Internal Proceedings” doctrine, however the German theoretical sources differ from those informing the English and French conceptions. The German doctrine of internal parliamentary proceedings originated in a constitutional crisis in Germany over the budgetary laws of 1862-1866, in the framework of which Parliament refused to ratify The constitutional changes in Europe in the second half of the twentieth century lead to a renewed assessment of the doctrine, which has now been endorsed in most of the European constitutions, and in view of which the interna corporis doctrine has been The application of the doctrine varies from state to state. Returning to the “spectrum” of intervention with which our discussion began, it emerges that the English law is at one of the scale whereas at the other end are three other states: Germany, Spain, and Israel. On a number of occasions the German constitutional court ruled on matters pertaining to the internal proceedings of the Parliament. As early as 1952 the constitutional court adjudicated the constitutionality of norms establishing a special proceeding for draft bills with budgetary ramifications. In 1959, the Constitutional Court ruled that placing a time limitation on interjections during debates on atomic armament and the allocation of response time between among various parliamentary This refusal triggered the question of judicial review of budgetary laws. In the framework of the Fourth Conference of German Lawyers conducted in 1863 in Berlin, the jurist Gneist was
asked to express his view on the matter. Gneist replied affirmatively to the question of whether
there should be judicial supervision of budgetary laws, but added that it was impossible to
oversee those stages of the legislative process that were conducted inside the Parliament itself, by
reason of interna corporis. In his view the internal parliamentary proceedings come under its
exclusive jurisdiction, and cannot be supervised by any other authority. For elaboration on this
subject see: A.N. Castillo El Control juridiccional de los actos parlamentarios sin valor de ley
(Madrid, 2000) 64 et seq.
Such as Switzerland, Germany, Belgium, Denmark, Spain, Greece, Holland, Ireland, Regarding the connection between the Israeli law and Spanish law on this subject, see (by author) S. Navot, “El Control Jurisdiccional de los actos parlamentarios: un análisis comparado de la evolución jurisprudencial en España e Israel 77 Revista Española de Derecho Constitucional, (Spain 2006) 153 factions, was consistent with the provisions of the constitution. In 1989 the Constitutional Court was presented with the Wuppesahl case, concerning a member (Wuppesahl) who was elected as a Bundestag member on behalf of the Greens. After leaving the party, the party replaced him with another party member in a number of different committees. Wuppesahl, who had meanwhile become a single candidate (similar to a single member faction in the Knesset), appealed to the Court, attacking a number of parliamentary rules that allegedly infringed upon his status and rights as an elected Bundestag member. The Constitutional Court accepted some of his claims, and ruled that his standing as a member of Parliament flows from the constitution, and not from the parliamentary rules. With respect to the Parliament’s ability to regulate matters pertaining to him, the constitutional court wrote that: "Generally, Parliament has broad discretion in making rules pertaining to its organization and procedure. The principle of universal participation in parliamentary functions, however, acts as a constitutional check on this power".
The rulings of the German Constitutional Court demonstrate the non-viability of an absolute division between law and politics in German law when it comes to intervention into internal proceedings. Accordingly, German doctrine suffices with the courts’ recommendation to act with “judicial self restraint”. A similar approach typifies Israel and Spain. The transition from the concept of parliamentary supremacy to the conception of the constitutional state and constitutional supremacy facilitated the intervention of the constitutional courts even in subjects that were previously regarded as being political and out of bounds. The constitutional discourse enables the court to confront the “political question” claim, replacing it with the claim of “subjection of parliamentary organs to the principles of the constitution”. 37P. Kommers The Constitutional Jurisprudence of the Federal Republic of Germany (2nd
ed.,1997)176
Benda, Maihofer, Vogel, Hesse, Heyde (Hrsg.) Handbuch des Verfassungsrechts der
Bundesrepublik Deutschland (Berlin 1994); Spanish Translation (Madrid 1996) 849
Elviro Aranda Alvarez Los actos parlamentarios no normativos y su control
jurisdiccional (Madrid 1998).
Until the beginning of the 1980’s, the accepted approach in Israel was for judicial intervention in Knesset proceedings to be exceedingly rare. As a rule, the court refused to intervene in the proceedings, decisions, and decisions of the groups comprising the Knesset, even though it had acknowledged the existence of formal jurisdiction under In Spain too, the traditional approach of the Constitutional Court was that internal parliamentary proceedings are non-justiciable, and that judicial intervention would only be warranted in extreme and exceptional cases. In Spanish law there is no constitutional provision that confers clear authority for judicial overseeing of parliamentary proceedings, but the Constitutional Court’s authority may be inferred from a number of The decisions of the Spanish Constitutional Court during the first period after the framing of the constitution were characterized by the creation of the “rule” and its “exceptions”. The rule was that the interna corporis doctrine prevents intervention in internal parliamentary proceedings. The exception was that intervention is possible in cases in which the act of parliament has acute legal ramifications, in other words, where its influence extends beyond the boundaries of internal parliamentary proceedings. In such a case, the act becomes subject to the rule establishing subordination of all norms to In Israel too, the court’s initial approach to the question of internal parliamentary proceedings was characterized by extreme caution. The court ruled that it would only intervene when there was a deviation from authority within the framework of quasi judicial proceedings in the Knesset. However, it was not long before the Supreme As mentioned above, the Israeli court ruled that “the problem is not one of authority but rather of how the High Court of Justice exercises its authority”. Judicial review of norms is possible within the framework of the claim of unconstitutionality. It is similarly possible in the framework of the Organic Law of the Constitutional Court (Ley Organica Tribunal Constitucional). See decision No. 1985 dated 22 July. For a survey of the traditional approach, see M. Retortillo “El control por el tribunal Constitucional de la actividad no legislativa del Parlamento” 129 Rev. de Admin. Publica (1985) 107, 116 (.
Platto Sharon case, supra note 6 Court’s approach changed. In 1981 the court adjudicated a petition against the Knesset Speaker’s decision – in deviation from the Knesset rules - to change the date of a no- confidence vote. In his judgment, Justice Barak rules that there is need to “balance” between the principle stating that work procedures of the Parliament are its own internal affair, and the principle of the rule of law. Barak held that the balancing test for intervention was “the alleged damage of the Knesset act or decision to parliamentary life, and the extent of its influence on the foundations of the constitutional structure”. The test is a “judicial” one that prevents daily interference in regular internal affairs. The judicial "self restraint" is expressed in the fact that not every minor violation of constitutional principles triggers judicial intervention: the violation must be a major and substantive one. However, given the discretionary nature of the intervention it is not possible to anticipate the particular kind of violation that will warrant or trigger judicial In a similar manner, the Spanish doctrine broadened the spectrum of cases in which the principle of interna corporis would not apply. For example, the Roca case of 1988, dealt with a petition submitted by 66 congress members who challenged the rule determined by the House presidium, regulating congress members’ entitlement to receive confidential material. The Spanish petitioners claimed that this constituted a violation of their right to receive information, which was a constitutionally protected right. The "The doctrine of interna corporis can only be applied where there is no violation of rights and freedoms stipulated in the constitution…. it follows therefore that in the framework of this proceeding the petition cannot be for a trivial violation. Where a parliamentary proceeding violates protected rights and freedoms it oversteps the boundaries of interna corporis and is given to the supervision of this court…" HCJ 652/81 Sarid v. Speaker of the Knesset, 36(2) P.D. 197 at 202 Decision no. 118/1988 . For a detailed description of the judgment, see in book: L.L. Guerra Las sentencias basicas del tribunal constitucional (Madrid 1998) 425
This innovative approach of the Constitutional Court was confirmed in a number of later decisions. As in Israeli law, the Spanish Constitutional Court emphasizes that not every alleged violation of rights entitles the petitioner to a remedy. Similar to the position adopted by the Israeli Supreme Court, the Spanish constitutional court includes a ‘proportionality” test which gives it discretion in assessing whether the case warrants intervention. The difference between the two approaches does not lie in the scope of the violation, for they both require a substantial and significant violation. Rather, the doctrines differ on precise identification of the protected value that must be violated in order to warrant intervention. The protected value in Israeli law is two-fold: the regime of parliamentary life and the foundations of the constitutional structure. In the Spanish system the protected value is the constitution. Over the last few years the Israeli court stated that judicial review of internal parliamentary proceedings is not so different from judicial review generally exercised in administrative law. The rhetoric of the Supreme court is that the fundamental conceptions of constitutional democracy, the fundamental principles of separation of powers, the rule of law, and equality, all lead to the conclusion that Knesset activities should be subject to full judicial review, much alike judicial review of any other sovereign authority. But this is the approach "de jure". "De facto" intervention in internal parliamentary proceedings has remained rare, and from the 1980’s until today there have been less than a handful of cases in which the Supreme Court has intervened in internal parliamentary proceedings. In other words, there is a gap between the Supreme Court’s high flown constitutional rhetoric and its actual practice of self restraint and caution regarding Knesset activities. Arguably, this is the main drawback of the judicial restraint approach: It depends on the inscrutable good will of the court and its willingness (or unwillingness) to abide by the rules of the game by acting with particular caution in its relations with the legislative authority. Petitions are continually filed in the knowledge that the court has the ability and the jurisdiction to intervene in internal proceedings. The The doctrine would regard this as fortifying the new rule and as a clear change of direction on the part of the constitutional court. Alvarez, supra note 39, at p.264. The author enumerates the decisions in support of Decision No. 90/1985, including Decision No. 12/1986 dated 15 January, and Decision No. 292/87 dated 11 March. Additional decisions in the same vein: 161/88; 181/89; 23/90; 119/90; 214/90; and 74/90. overwhelming majority of petitions are dismissed, but only after the court has examined them on their merits. A situation of uncertainty obtains in which the Knesset is incapable of “anticipating” the intervention of the Supreme Court, and the existence of vague and flexible rules of intervention thus give the court the upper hand in its relations with the 5. Conclusion
Under the traditional approach, an issue was non-justiciable if it involved a question for which the court had no legal tools upon which it could base a judicial resolution, and its solution was in the hands of political bodies charged with the deciding of the matter. Nonetheless, it is undisputed that the justiciability claim today is of a considerably narrower scope than in the past, and this change enables the various courts to oversee governmental /sovereign acts, which in the past enjoyed a large measure of ‘immunity’. The Israeli Supreme Court provides a striking example of this development, especially with respect to intervention in Knesset acts and proceedings relating to inter- party relations and political-coalition agreements, and even with regard to security related matters. The new approach of the Supreme Court regarding political questions does not exclude specific political issues from the ambit of judicial attention, but fails to clarify its actual criteria for intervention. The court both proclaims and practices a policy of judicial self restraint and caution but it has and continues to determine its own criteria for judicial intervention, exercising absolute and unilateral discretion in deciding whether to intervene in a particular case or not. This poses a formidable obstacle to any attempt on the Knesset’s part to anticipate the nature and extent of Supreme Court intervention in The interesting and problematic feature of the policy of limiting the court's intervention is that High Court decisions dismissing the appeal against an internal proceedings are often based on a lenient application of the rules of conduct that generally apply to acts of governmental - sovereign authorities. Instead of relying on the objective (although a bit old-fashioned) doctrines of ‘standing’ or ‘justiciability’, it "softens" the rules of constitutional law when applying them to the Knesset. The result is vagueness and lack of uniformity in enforcement of the law upon the Knesset. Arguably, the excessively broad margin for judicial discretion may also promote judicial hesitation, or avoidance of intervention, born of the fear of unpopularity, which is unrelated to the legal As a matter of principle, I do not think that the political content of a parliamentary decision is sufficient to immunize or protect it from the judicial supervision. A clear distinction between “law” and “politics” in the framework of the Parliament is impractical. Notably, in the constitutional states of Europe, political activity is constitutionally regulated. As such it has a “normative” character and is for the most part justiciable. As mentioned above, even in American Law, , the doctrine od the political The basic values of the democratic-constitutional regime establish the framework for legitimate parliamentary activity. As a rule, the “political” variable of each specific parliamentary decision is not relevant, and in the spirit of Morhorff’s comments: “the legal and political foundations of parliamentary law are so tightly connected that a conceptual distinction between them is inconceivable”. Prima facie, exercising the doctrine of non-justiciability and the doctrine of judicial self restraint ultimately produce the same result – the court does not intervene. However, limiting the examination to the bottom line may be misleading. Under the non- justiciability doctrine the court’s non-intervention means the non-examination of the decision itself, and the absence of any judicial assessment of its merits. When a petition is rejected by force of judicial self restraint, the court has generally examined it on a substantive level, and when deciding not to intervene the court effectively gives its positive approval to the decision, thus functioning as the final, overseeing authority over In the words of Michael Gerhardt “Rediscovering Nonjusticiability: Judicial Review of Impeachments after Nixon” 44 Duke L. J. (1994) 231: “Few constitutional cannons are criticized more often than the political question doctrine. It has been called ‘deceptive’, ‘unwarranted’, ‘an enigma’ and ‘mixed up and inconsistent’.” Free translation from F. Mohroff Tratado di Diritto e procedura parlamentare (Roma, 1948) 5 ,L. M. Elipe, Introduccion al derecho parlamentario (Madrid, 1999 at p. 261
The non-justiciability claim has aged somewhat but nevertheless; it introduces a sense of “order” into the legal system. There are certain clear and optimally defined subjects which will simply not be examined in court. The non-justiciability claim prevents the court from becoming a continuous political player in the political arena. The court should not be an address for rectifying the failures of the governmental authorities, and it must not become a governmental alternative. The court that is prepared to function as a judicial overseer, increases its involvement in public and political life - with all that is implied thereby in terms of public trust, etc ; whereas the court that is prevented from becoming involved, leaves the controversial decision and its wisdom for the public

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