Constitutional Efficacy

Question 1

Explain what constitutional efficacy is

Answer 1

–> how often/ faithfully the constitution is adhered to
–> norm behaviour congruence

Question 2

What are the aims of the rule of law

Answer 2

-predictability
-Prevent arbritrary exercist of power
- Power to execute a judge’s order (due execution)

Question 3

What are the elements of the rule of law

Answer 3

1. principle of legality
2. State-free sphere
   -limited/small government
   -(info) limitations of fundamental rights accessible and foresseable
   3.Separation of powers

Question 4

Explain the principle of legality

Answer 4

• rule of (only) law
  -rules equal for everyone
  -no unduly wide discretionary powers
  -prohibition of retroactive effect
  -publicly available (info)

Question 5

List the obstacles to constitutional efficacy

Answer 5

parliamentary sovereignty
judicial activism

Question 6

List how parliamentary efficacy (keeping the parliament efficient) ensured

Answer 6

• Legislator determines what the norm means
• Interpretation guidelines 2 maintain consistency and fairness in parliamentary decisions
  -Awareness: statement of incompatibility
  -make legislators aware of situations where existing laws or proposed legislation might be incompatible with the constitution(deterrent perchance)
• Awareness: Notwithstanding clause
  -awareness clauses of that allow certain laws 2 operate despire conflicting with constitutional provisions
  -Deference: presumption of constitutionality
  -not everything can be annuled on the basis of unconstitutionality
  -Bicameralism
  -Assessment by head of state

Question 7

List the non-judicial methods to ensure constitutional efficacy

Answer 7

1. preparing legislation
   2.Parliament as guardian of the constitution
   3.Promulgation: Head of State as co-guardian of the constitution

Question 8

Explain how preparing legislation ensures constitutional efficacy

Answer 8

-Self control between ministries on governmental legislative proposals
-Council of state
-not judicial participation though

Question 9

Explain how promulgation: Head of State as Co guardian of the Constitution ensures constitutional efficacy

Answer 9

• Presidential veto on constitutional grouonds
  -Referral of a bill to a constitutional court

-but tension with principles of democracy and separation of powers

Question 10

Explain the argument for judicial review as a means of achieving constitutional efficacy

Answer 10

• protect human and esp. MIN. RI. from
  -the zeal of the majority (protect against tyranny of the majority)

Question 11

Explain the arguments against judicial review as a means of achieving constitutional efficacy

Answer 11

-Undermines parliamentary sovereignty
-Unelected–> less democratic
-need for judicial review reflects the weakness of democratic insti.

Question 12

List the types of constitutional review

Answer 12

-Abstract
-Concrete
-Concentrated
-Unconcentrated
-Specialised courts
-Ordinary courts

Question 13

Explain what abstract review is

Answer 13

• the review focuses on:
  -general princ. + broader implications
  -Hypothetical/ theoretical
  
  • shape leg. doctrine + precedents before conc. prob arises

Question 14

Explain what concrete review is

Answer 14

-focus is on spec. cases
-constitutionality in real life cases
-solve the acc dispute

Question 15

Explain what concentrated review is

Answer 15

• power is granted to one actor (one court, specialised court)

Question 16

Explain what specialized courts are

Answer 16

-Courts with specific tasks in mind, and which possess specific expertise on cer. matters
(e.g: cc)

Question 16

Explain what unconcentrated review is

Answer 16

-power of constitutional review is granted to mult. actors
-any (court) is allowed to review the const. of a piece of legislation (even ordinary legislation)

Question 17

Explain what ordinary courts are

Answer 17

• courts with more general functions, without particular expertise on any specific topic

Question 18

Explain what anticipatory compliance is and its benefit

Answer 18

-political actors
-antici. possible outcome of jr
-take those conc. into account when drafting leg.