Review of Po Jen Yap's Constitutional Dialogue in Common Law Asia (Oxford University Press, 2015) (original) (raw)

The Perils of Judicial Restraint

Goettingen Journal of International Law, 2019

The article analyzes the International Court of Justice and its approach to judicial decision-making. By investigating the Court’s jurisprudence over its seventy years of activity, the article seeks to outline, that if given the choice, the ICJ tends to prioritize judicial restraint over judicial activism. In fact, the Court maintains a strict adherence to judicial restraint, which stems from a fear of losing its legitimacy when facing the issue of consent-based jurisdiction. The article purports that although judicial restraint is an important facet of sound judicial decision-making, the ICJ should not be so reluctant to adopt judicial activism when it is suitable to utilize such an approach. Such a position is strengthened when analyzing the criticisms made of judgments delivered by the Court, which fail to serve the international community beneficially.

Rights, Remedies and Restraint

This article argues that a judge who is admirably "restrained" in the sense of "self-disciplined" will decide cases according to principle, but will not always construe rights narrowly. “Principle,” however, is not likely to be a helpful guide in the highly contextual business of designing institutional remedies. In such cases, a judge seeking to operate under a "rule of law" model of judicial restraint, should limit his or her own role in complex cases to institutional reforms likely to produce a stronger institutional dedication to legal compliance and hence, over time, fewer occasions for judicial supervision.

A Synthetic Theory of Judicial Review.docx

Within the scholarly literature, one can find many different theories that aim to provide justification for the practice of judicial review. Based on the assumption that none of these theories can succeed this task on its own and that a certain kind of interaction among them is necessary, this paper aims to outline and synthesize three distinct approaches to judicial review with the hope that they can compensate for each other's weaknesses and present a more convincing response to the question at hand, than they would have done so individually.

CONSTITUTIONAL COURTS SECURING THEIR LEGITIMACY: AN INSTITUTIONAL-PROCEDURAL ANALYSIS

forthcoming in A von Bogdandy, P Hüber and Ch Graberwarter, eds., Handbuch Ius Publicum Europaeum Band VII, CF Müller, 2020

It is imperative for constitutional courts and their judgments to enjoy respect to allow them to make good on the intended objective of providing solid constitutional guardianship. At the same time, judicial legitimacy is a precious commodity that once lost is hard to replace. It should be realised that threats to the legitimacy of constitutional courts are often not self-manufactured, in the sense of gratuitous judicial overreaching or a callous disregard by the court for what the other organs of State or the country's population deem important. They are, rather, a corollary of two distinct though related factors. First, the extent to which the procedural framework, as designed by the political branches of government, allows for the referral of any and all constitutional questions to the court. This chapter explains how quasi-comprehensive portfolios of responsibility, coupled with lenient rules on access, enhances the probability that social or politically sensitive issues will enter the judicial arena for resolution. The second factor concerns a country's political and economic climate. A government faced with a poorly performing economy or other financial constraints, and an electorate demanding effective and rapid action, may be enticed to respond with rules that give short shrift to constitutional values. In such situations, remedial approaches other than annulment decisions are particularly attractive for courts faced with constitutional defective statutes, as they mitigate the risk of an inter-institutional confrontation and any ramifications such may have for the enforcement of judgments. These could further ameliorate perceptions of judges as sympathetic to the plight of governments in regulating society, rather than legalistic troublemakers who do not know or care about socio-political realities. This chapter critically discusses the most significant of these decisional techniques as applied by Europe's Kelsenian constitutional courts: constitution-conform interpretation, rendering rulings of temporary constitutionality or severing the link between a finding of unconstitutionality and annulment. It is interesting to note that in many countries, several of these techniques have been fashioned by the courts themselves in direct response to the precarious reality of their political environment. This suggests that courts are keenly aware of the delicate balancing act that they must perform in protecting constitutional integrity and alert to using 'prudential' remedial techniques to attenuate political or social discontentment.