...Referendum as ‘to hold otherwise would be to make a mockery of the decision by the people’. This view was upheld by Brennan J and it was held that the 1967 Referendum was ‘an affirmation of the will of the Australian people … that the primary object of the power is beneficial’. Gaudron J in Kartinyeri contemplated that although the scope of Section 51 (xxvi) is wide enough to authorise laws to the advantage...
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...declaration for the supremacy of EU law but some articles logically imply supremacy. The Lisbon Treaty is silent about the principle of the supremacy of the European Union law over national law. However, Declaration number 17 was attached to the aforementioned Treaty to this effect. There can be seen a very unambiguous perspective on the issue of supremacy of European Union law over disagreeing national law: ‘under the principle of supremacy, precedence must always be given to Community law over conflicting national law however framed and including national constitutional provisions'. As it is firmly known, the discussed principle of supremacy was established as well as developed in almost historical case of Costa v. Enel. In that case the collision between the law of the European Community and the Italian national law had been analysed. The conclusion of the European Court of Justice (hereinafter referred to as ‘ECJ') was based upon the limitation of sovereignty of each Member State and also on the transfer of powers from the States to the Community. The ECJ's core justifications for the discussed principle are ‘independence, uniformity and efficacy' of Community law. From this point of view, European Union law is ‘an integral part of ... the legal order applicable in the territory of each of the Member States'. The ECJ has developed arguments that would validate the conclusion about the Community law being accorded supremacy over national law. Undoubtedly, integration and co-operation...
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...topic, check it out with me. Once you select a topic, and I would suggest that this be done promptly, stop by my office to discuss your research endeavor. Track A: Issue-centered paper. Those choosing this track will research and write a paper on a specific issue of constitutional law. The paper will focus on the Court’s treatment of an issue and competing perspectives on it (both on and off the Court), and provide an evaluation and critique of those perspectives. It will culminate in a defense of its own thesis. Possible topics include: • The history, functions, and uses of one of the various “technical barriers” • Scope and limits of the presidential power to pardon • Federalism as a value in the Warren and post-Warren Supreme Court • Federalism as a constitutional concept in the Rehnquist Court • How far did the Rehnquist Revolution in federalism go? • The constitutional status of the War Powers Act (1973) • The concept of Executive Privilege • Are there limits to the Court’s recent “takings clause” jurisprudence? • The impact of I.N.S. v. Chadha (1983) • An analysis of the contemporary understanding and constitutional significance of (a) the reversal of New Deal legislation by the Supreme Court, or (b) the Court Pack Scheme of F.D.R. • Congressional attempts to restrict the jurisdiction of the federal courts...
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...Jury Selection, Trials and Constitutional Rights The jury selection process is a significant portion of the trial process. Jury selection ensures that courts maintain proper Due Process and comply with constitutional guidelines. Furthermore, it gives lawyers the ability to evaluate the people in the jury and determine how they would feel about the case. The trial process branches out into six steps: jury selection, opening statements, presentation of evidence, closing arguments, charging of the jury and deliberation of jury. Throughout the process of jury selection, potential jury is based on a process names an voir dire; otherwise known as committing to telling the truth. During voir dire, potential jurors are included in the case or eliminated from the jury. Potential jurors are required to answer a series of questions concerning their personal bias regarding the case. The series of questions help determine if any of the potential jurors have had previous exposure to the context of the case, or a personal connection to the actual trial. If a lawyer can conclude based on the questioning, that the juror may be biased, they have the ability to challenge their position on the jury. Voir dire will be further examined in order to discuss how an unbiased jury is prepared for a trial. The following step once the jury is selected is the opening statements. The prosecution and the defense each have an opportunity to present their case to the jury. Although, no...
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...United States Supreme Court has the authority to make the final decisions regarding our Constitutional rights of American citizens. Some court cases are relatively straightforward. However, due to the wide nature of potential situations, cases often appear that ask fundamental and difficult questions about the nature of legal principles. One famous case that comes to mind is the Miranda v. Arizona, which reached the Supreme Court in 1966. Police investigations varied between departments throughout the United States. Some procedures which some became labeled coercive began to be observed, in some urban centers. Police officers want to determine the facts in cases of criminality and to protect the public by apprehending the perpetrators of crime. Some argued that taking overly aggressive actions undermined the civil liberties upon which the American Nation was founded. Given these competing arguments, and the Warren Court’s then recent trend toward increases activism, the setting was set for a hearing of these matters in the highest court of the United States. That came in the form of Ernesto Miranda. Ernesto Miranda was arrested in a serious criminal case, it involved the kidnapping and rape of a young women. His arrest was based on generally circumstantial evidence, without any clear proof. Police investigators decided to interrogate Miranda in order to ascertain the facts of the matter. Evidence in the case indicates that under police interrogation, Miranda confessed to the...
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...justifications offered for this amendment is the ‘needs’ for returning to the spirit and contents of the founding constitution of 1972 of Bangladesh. Yet the 15th amendment rather accommodates some of the changes brought out by the 5th and 7th amendments, both made by the Martial Law regime and recently declared illegal and unconstitutional by the apex court of the country. 15th amendment, like most of the previous amendments, also largely failed to reflect comparative constitutional studies. Such study is considered essential for learning the experiences of constitutionalism in relevant jurisprudences and borrowing or adapting them in amending a nation’s own constitution. Although the 1972 constitution of Bangladesh was indigenous in part, the 1972 Constituent Assembly (led by Bangabandhu Sheikh Mujibur Rahman) enriched our constitution by the same process of borrowing and/or adapting from models and concepts of foreign constitutions. For example: collective responsibility of ministers to Parliament and functions of parliamentary committees were taken from UK system, the concept of fundamental principle of state policy from India and Ireland, the provisions of human rights and Judicial review from US constitutional jurisprudence. Such borrowing is a recognised practice partly due to the fact that the functions to be discharged by a modern state are fundamentally similar all over the world such as legislation, administration and adjudication. A realisation that the goal of divergent...
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...Case note by Silent Assassins State of Gujarat V Mirzapur Moti Kureshi Kassab Jannat and others Court: Hon’ble Supreme Court of India Date: 26 October 2005 Bench: R.C. Lahoti, C.J.I., B.N. Agarwal, Arun Kumar, G.P. Mathur, C.K. Thakker, P.K. Balasubramanyam, JJ and A.K. Mathur. Introduction This is a case challenging certain amendments introduced in section 5 of Bombay animal preservation act, 1954(as applicable to the state of Gujarat). It’s a public interest case based on constitutional law. The Gujarat high court struck down the said provision as ultra-vires to the constitution as opposed to the fundamental rights (article-19) and directive principle. This amendment was introduced to prevent slaughtering of animals without obtaining in writing from the competent authority appointed for the area that the animal is fit for slaughter. Facts The constitutional validity of the above said legislation, that is, the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 was put in issue by four writ petitions filed in the High Court which were heard and disposed of by a common judgment dated April 16, 1998. Two of the writ petitions were filed by individuals who were butchers by profession, and are known as Kureshis. Two writ petitions were filed by the representative bodies of Kureshis. The High Court allowed the writ petitions and struck down the impugned legislation as ultra vires the Constitution. The High Court held that the Amendment...
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... Paper - II Constitutional Law - I Paper - III Research Methodology Semester II Paper - I Legal Theory - II Paper - II Constitutional Law - II Paper - III Law and Social Change ~YllabUS for tbe LL.M. Programme Note: The topic title of the syllabus is merely indicative. In order to keep up with the recent developments in law and the development of various concepts and ideologies, the subject faculty will supply detailed syllabus during the course of the scheme. The subject faculty will also supply the seminar topics for each student for each semester separately. The student should ensure that they are allotted the seminar topics in each of the subjects at the beginning of the semester itself. LEGAL THEORY I 1. Nature of jurisprudence 2. Meaning of Law 3. Natural Law theories 4. Classical Positivism 5. Pure Theory of Law 6. Analytical School of Law 7. Sociological School of Law 8. American Realism 9. Scandinavian Realism 10. Historical and Anthropological Jurisprudence 11. Marxist Theories of Law and State 12. Feminist Jurisprudence 13. Postmodernist Jurisprudence 12 SUGGESTED READINGS 1. Lloyd's introduction to jurisprudence 2. Jurisprudence by Dias 3. Jurisprudence by Mahajan 4. Jurisprudence by Bodenheimer 5. Jurisprudence by Wayne Morrison 6. Concept of Law H.L.A. Hart 7. Social Dimension of law by Julius Stone 8. Law in the Changing Society by Friedman 9. Law in the making by C.IZ. Allen 10. 1300ks on Constitutional Law in India and...
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...Constitutional Law Names Institution Constitutional law Answer 1 In Clause 2 of Section 2 of Article III of the U.S Constitution, the Supreme Court is appointed with two types of jurisdictions namely original jurisdiction and appellate jurisdiction. The former affects all cases relating to ambassadors, other public consuls, public ministers. It also involves the cases that a State shall be Party. Under this jurisdiction, the Supreme Court has the power to order subordinate courts or government officials to perform actions required by law. The scope of this jurisdiction is narrow. It only focuses on the above-mentioned categories and suits between states. Its function is to eliminate the parochialism and bias of state and lower federal courts. Appellate jurisdiction has a wider scope. It involves cases in law, equity, and treaties made; cases of maritime jurisdiction and admiralty; cases between U.S States; cases between citizens and a state; and cases between citizens of either same or different states (The Heritage Foundation, 2012). Answer 2 The Younger Abstention Doctrine prohibits U.S federal courts from handling cases that are within their jurisdiction so that a state court can handle the matter instead. Its function is to maintain a balance between federal and state sovereignty, a fact called comity or federalism, and to avoid friction between the two courts as they conduct legitimate activities. This is because the legal system in the U.S comprises two parallel...
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...The exclusionary rule is a lawful principle in the United States, which holds under constitutional law, which states that it can hold evidence collected or examine in violating the defendant's constitutional rights is sometimes inadmissible or does not hold in trial or before the grand jury for a criminal prosecution in a court of law. Exclusionary rule structure is hold by the fourth amendment which protect civilians or citizens from illegal searches and seizures. The Supreme Court change the foundation of the fourth amendment in Weeks v. United States, 232 U.S. 383 (1914), by changing the fourth amendment philosophy of law. “Weeks involved the appeal of a defendant who had been convicted based on evidence that had been seized by a federal agent without a warrant or other constitutional justification. The Supreme Court reversed the defendant's conviction, thereby creating what is...
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...TAYLOR’S LAW SCHOOL BACHELOR OF LAWS CONSTITUTIONAL AND ADMINISTRATIVE LAW I 60504 WRITTEN ASSIGNMENT AUGUST 2014 Name of Candidate | : | TEY LI YING | Student Number | : | 0321795 | Intake Subject Code | : | LAW 60504 | No of Words | : | 2415 | Due Date | : | 17th OCTOBER 2014 | Date of Submission | : | 17th OCTOBER 2014 | Lecturer | : | DR. KUEK | CANDIDATE DECLARATION I hereby declare that the coursework produced herein is based on my original effort except for quotations and citations that have been duly acknowledged. This work or any part of it has not been previously or is not concurrently submitted for any other degree at Taylor’s University or any other institution. I also fully understand that in the event of any academic dishonesty on my part, I may be subjected to the strictest disciplinary action at the discretion of Taylor’s University Malaysia. _______________________ NAME : TEY LI YING STUDENT NO: 0321795 NRIC NO: 970628-60-5046 DATE: 17th OCTOBER 2014 ‘Indeed, an absolute separation would in practice be counterproductive in that it would prevent the abuse of power by preventing the exercise of power. Government could not operate if this were the case.’ Neil Parpworth, Constitutional & Administrative Law, (Oxford University Press, 2008) Discuss whether this statement is true in the UK. If it is, how does UK prevent the abuse of powers if there is no strict separation of powers between...
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...The Supreme Court The purpose of the Supreme Court is to review or address cases that involve issues on a federal level or of constitutional law, just as appellate courts hear cases on a state level. Their responsibilities include deciding how to apply the principles of constitutional law to new matters and issues that arise in today’s day to day legal process; they also play the role of the “parent” to lower federal appellate courts when their decisions on legal issues are contradicting to one another, overlap, goes against constitutional rights, or allows room for confusion as to whose decision takes precedent. Bottom line the purpose of the Supreme Court is to provide the rules and statues for state level courts to abide by when they involve federal or constitutional matters, making them the highest court of law. The Supreme Court is made up of nine judges or justices of the peace that are appointed by the President of the United States and the advice of the senate, their titles include one chief and eight associates that serve a life term. By law there are no particular requirements, educational experience or background, or law degrees necessary to become a Supreme Court judge, but because the advice of senate is used by the President of the United States to select the justices their experience and background is taken into consideration. These nine justices makeup what is considered a full court, however it only takes six justices to makeup a lawful bench and in some circumstances...
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...the effect that many of the burdensome budgetary and administrative problems which are currently encountered by welfare officials in the demeanor of the public aid program would be substantially alleviated by the removal of this bottleneck in the processing of applicants. “Only the constitutional test of equal protection is not satisfied by considerations of minimal financial expediency alone. To be sure, the State may reduce or even eliminate entirely welfare payments if it chooses to conserve resources in this fashion; it may turn...
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...Justice Sabharwal brought about the first binding change in the law of privileges in India in Raja Ram Pal V The Hon’ble Speaker, Lok Sabha. The Court held that the Power of Judicial Review under Article 13(2) would extend to the privileges on a case to case basis overruling its earlier decisions. In Raja Ram Pal the Court said: “That the Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ.' In the instant case the primary question before the court was whether in exercise of the powers, privileges and immunities of the members of the parliament are the Houses of Parliament competent to expel their respective Members from membership of the House. If such a power exists, is it Subject to judicial review and if so, the scope of such judicial review and whether the court has the jurisdiction to try such a case. The aforesaid question have arisen against the allegation that the Members of Parliament (MPs) indulged in unethical and corrupt practices of accepting monetary consideration in relation to their functions as MPs. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, & Ors, is a clear expression of a very basic feature of the Indian constitutional mechanism: where...
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...In United States v. Lopez (1995), the Supreme Court ruled that Congress had exceeded its constitutional authority under the Commerce Clause when it passed a law prohibiting gun possession in local school zones. The case arose out of the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." Alfonso Lopez Jr., a high school senior, was convicted in a federal district court for knowingly possessing a concealed handgun and bullets at his San Antonio high school. The Fifth Circuit Court of Appeals reversed the decision, ruling that the law was beyond the reach of Congress's power under the Commerce Clause. The government appealed to the Supreme Court, which reviewed the case in 1994. The Supreme Court, in a 5-4 decision written by Chief Justice William Rehnquist and released in 1995, ruled that the Gun-Free School Zones Act was unconstitutional and overturned Lopez's conviction. The Court ruled that the act exceeded the limited powers of Congress under the Constitution, rejecting the government's argument that the act was constitutional because the buying and selling of guns and associated illicit activities affect "interstate commerce," which Congress may regulate under the Commerce Clause. The government claimed that gun violence in schools leads to both more dangerous and thus less commercially healthy neighborhoods and less...
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