From negative to positive legislator? The changing roles of constitutional courts in response to legislative omission

Stream: Panel 21 - Human Rights & Democracy: The Role of Courts, Parliaments and Electoral Systems in Enforcing Human Rights 
Date: Monday, 26 September 2016
Time: 2.00 pm – 3.30 pm

Abstract

An important but challenging development appears to be occurring in the character of some constitutional courts – a shift from their traditional role as a negative legislator, to a significant role as a positive legislator. Under this shift, a constitutional court is no longer confined to declaring the unconstitutionality of statutes if they are contrary to the Constitution, and simply annulling them, but rather takes on a positive power to create statute law, such as by assisting the legislative branch to fill constitutional gaps caused by legislative omissions and enacting temporary or provisional rules to be applied on specific matters. This apparent development in the power of constitutional courts provokes vital questions. Why has such a role developed? What are its most important manifestations? As seen in at least one of these manifestations (new powers for rectification of legislative omission), what are the benefits and risks of such powers? Do the benefits outweigh the risks, and how might benefits be maximised, and risks minimised? In response to these questions, this study seeks to gain a deeper understanding of the apparent shift in constitutional courts’ power from negative to positive legislator. To understand its positive and negative implications for countries struggling with establishment and maintenance of democracy, the study applies lessons from international experience regarding powers of legislative omission, to ask whether any such power could help address the challenges of serious constitutional omission.

Author

Ahmed AL-Dulaimi (Presenter), Griffith Univercity
Ahmed AL-Dulaimi, A PhD candidate at Griffith University, School of Government and International relations. Master in constitutional law and Bachelor of Law .