Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited

Dixon, Rosalind

doi:10.2139/ssrn.1536716

Cited by 16 publications

(12 citation statements)

References 6 publications

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“…In some jurisdictions constitutional rights are not subject to judicial review at all 10 . Other jurisdictions incorporate their constitutional rights in a process of judicial review, distinguishing between weak and strong models (Sinnott-Armstrong 2003; Tushnet 2004; Dixon 2007). Canada is an oft-discussed example of the former.…”

Section: Why a Constitutional Right To Basic Income?mentioning

confidence: 99%

The stability of basic income: a constitutional solution for a political problem?

Wispelaere¹,

Morales²

2015

J. Pub. Pol.

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Although basic income has surged in policy interest in recent years, political research has not kept up with the debate in the trenches. In this article, we tackle a political problem any enacting coalition must face: how to ensure the political stability of a basic income over time. We first demonstrate how basic income schemes are particularly vulnerable to processes of policy change discussed in the recent policy feedback literature. We then analyse whether constitutionalising basic income in a Bill of Rights protected by strong judicial review would offer a valuable route for boosting basic income’s stability. A careful examination of the decision-making process within judicial review suggests that, caught up in a dilemma between judicial restraint and judicial activism, an enacting coalition would do well not to rely on constitutional mechanisms as the sole avenue for ensuring the political stability of basic income.

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Section: Why a Constitutional Right To Basic Income?mentioning

confidence: 99%

The stability of basic income: a constitutional solution for a political problem?

Wispelaere¹,

Morales²

2015

J. Pub. Pol.

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“…If Semenyih Jaya heralds a period of mutual respect between the judiciary and the legislature, as well as greater awareness amongst constitutional actors regarding the importance of constitutionalism, then the broader aim of dialogic judicial review 'to introduce new ideas, perspectives or even equilibriums into the political process, with a view to encouraging the broader constitutional culture to reconsider its allegiance to the previous status quo' would be further advanced. 200 Furthermore, if the Federal Court's interpretative approach to the post-amendment Article 121(1) endures in future cases, this could indicate a new and promising variation of the 'basic structure doctrine' as set out in Kesavananda and its progeny of cases. Under the Semenyih Jaya approach, it could be unnecessary after all for courts to strike down constitutional amendments that destroy the 'basic structure'a direct challenge that risks cornering the political branches into retaliation.…”

Section: A Uniquely Moderate Approach?mentioning

confidence: 99%

Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia

Tay¹

2019

Asian J. Comp. Law

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In Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, the Federal Court of Malaysia asserted that the Federal Constitution continues to vest a distinct and independent judicial power in the judiciary notwithstanding earlier constitutional amendments, and also gave substantive effect to the ‘basic structure doctrine’ for the first time in Malaysia. This has contributed significantly to the long-standing discussion of whether, and to what extent, the ‘basic structure doctrine’ applies in Malaysia. Situating that landmark decision within the context of the evolving judicial practice in Malaysia and other jurisdictions on the ‘Westminster model’, this article evaluates the extent to which Semenyih Jaya has contributed towards strengthening constitutionalism and the rule of law in Malaysia. Considering that the apex court stopped short of directly invalidating the relevant constitutional amendments, this article argues that Semenyih Jaya represents a sophisticated modification of the ‘basic structure doctrine’ to fit the current context of Malaysian constitutionalism. This article also examines how Semenyih Jaya advances the ‘constitutional dialogue’ between the judiciary and its co-equal branches of government, and assesses the strengths and weaknesses of the approach taken by the Federal Court in that case.

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“…In some cases, judges can actively track compliance with their dictates (Trochev 2008, 23), or even, as in India, appoint commissions to monitor the implementation of their rulings (Castillejos-Aragón forthcoming). They can also negotiate (directly or indirectly) with public authorities, perhaps offering broad policy frameworks in their rulings but leaving the specifics of implementation to those authorities and/or encouraging participation and debate following their rulings (“dialogic activism”) (see Dixon 2007; Gargarella 2011; Huneeus 2011; Rodríguez-Garavito 2011). Alternatively, they may publicly tolerate some variance around the standard they set (Chayes and Chayes 1993, 197).…”

Section: Explaining Compliancementioning

confidence: 99%

Compliance: Conceptualizing, Measuring, and Explaining Adherence to Judicial Rulings

Kapiszewski¹,

Taylor²

2013

Law soc. inq.

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Public authorities' compliance with judicial dictates is central to legality and constitutionality, may influence broader policy and political outcomes, and can have powerful feedback effects on judicial decision making, independence, and power. As such, it has crucial implications for interbranch relations and the rule of law. Effectively measuring compliance with judicial rulings and clearly explaining when and why elected leaders adhere to courts' mandates present a range of inferential challenges. Building on the groundwork laid in the burgeoning literature on the topic, this article advances two analytic frameworks (one for measuring and one for explaining compliance), offers strategies for grappling with the problems of descriptive and causal inference that arise in studying compliance, and advocates the use of multiple analytic methods to generate and test hypotheses regarding compliance.

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Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited

Cited by 16 publications

References 6 publications

The stability of basic income: a constitutional solution for a political problem?

The stability of basic income: a constitutional solution for a political problem?

Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia

Compliance: Conceptualizing, Measuring, and Explaining Adherence to Judicial Rulings

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