Anton Bochkov

Compare and Contrast the power of the judiciary in different political systems.
Powers of the judiciary in many countries are vaguely similar and they perform roughly the same functions in the governments. That is powers of judicial review, constitutional interpretation (in some countries such as US), protecting rights and liberties and sentencing law breakers. However, the extent to which the judiciaries are able to perform these functions effectively and how respected and powerful their decisions are varies with the government they are serving for. The general trend may be those countries with incorporated positive rights (social rights) and those who have strong human rights protection ethic have more powerful judiciaries whereas those with unwritten constitution on less independent judiciary have less power. As Donald Horowitz wrote in his book considering powers of judiciary: Some become powerless structure, unable to gain public restrain,or restrain the appetites of politicians. Others become, essentially, intrusive political structures, dictating what legislature and executives must or must not do. Arguably the power of constitutional interpretation is the power which varies the most within different political systems as many countries do not possess a written Constitution, such as UK and Israel who both have uncodified constitutions. Therefore, when making a decision judges cant look at the constitution and get a meaning for the particular case and have to base their decision on common law and basic principles which makes it more subjective. Unlike in the US where judges can look at the constitution and determine what it means in present times. Such may be the case with the 8th Amendment and the unusual and cruel punishment which relates to death penalty. In Furman vs Georgia and later Coker vs Georgia judges determined differently in both cases where the death penalty could apply and where couldnt respectively due to different interpretation. On the other hand, places such as Hungary who only had their new constitution approved, which took effect on 1 st Jan 2012, have limited scope for judicial interpretation mainly due to powerful governments which took over and gave very few powers to the judiciary and the lack independency from other branches of government. Therefore their decisions will not be largely influenced by constitution but by governments opinion which limits their powers of constitutional interpretation and their general powers too. Another vital power of the judiciary is the power of judicial review which is when the Supreme Court can declare the law void and null as it goes against whats written in the constitution. In many countries, such as US and South Africa, this power of the Supreme Court is used a lot and the judiciary is considered powerful due to those abilities. SCOTUS in Cititzen Unite vs USA 2010 struck down the law which forbidden organization to donate money to elections as corporations were also protected under the 1 st Amendment law in the Constitution. Same happened in South Africa when in 2004 Supreme Court denied govt attempts to limit the right to vote for prisoners which was thought to be unconstitutional. Prisoners voting in the UK always have been a controversial issue and the Supreme Court under the ECHR said that some prisoners can vote depending in their sentence, which was against the government position. The fact that EU laws are superior to UK laws makes UK judiciary more powerful as they make sure that UK laws dont contradict with EU law. Judiciary can tell the government that some laws are beyond their powers (ultra viarez) as happened in Italy in 2004 about experimentation on animals. The ability to declare some legislation unconstitutional enables the judiciary to be very powerful in those countries. However, there are also some constraints on their power which makes them less powerful. In US the government is able to override the decision via an amendment to the constitution but its a very long process and happened only once in history (16th Amendment ability of government to collect income tax).

Anton Bochkov

Moreover, not often the decision made can be enforced easily as courts dont have the power to enforce their decisions, such as in the US. In addition in Hungary the increased number of Supreme Court justices by Fidez enabled him to make it less independent and weaken it as judges pay less attention to his legislation and hence the power of judicial review is diminished in Hungary. Therefore, the power of judicial review varies from country to country depending on the political system. Protection of rights and liberties is a vital power of the judiciary as it makes sure the rights of minorities arent undermined and peoples rights are protected well from their biggest threat which is likely to be the government itself. In the US the rights and liberties are well protected by the Supreme Court and they have a set of very extensive powers in that area. Such as when New York introduced harsh gun control laws which were against the right to bear arms and the law was struck down by the SCOTUS. Protection of rights and liberties enables people to be free from the government and enjoy their rights which couldve been otherwise violated. Like the case with Tony Blairs 120 days without a trial legislation which was denied by the Supreme Court as it was a clear violation of Habeas Corpus principle. In addition the powers of the UK judiciary were strengthened in that area after the Human Rights Bill was introduced in 1998 and due to UK being under the influence of UCHR. Moreover, in countries where the positive rights are incorporated into the constitution the power of the judiciary tends to be overwhelming overall. Take South Africa as an example, where in 2002 SC ordered to make anti-AIDS drugs more available as it was in breach of the constitutional right to health. On the other hand, since the 9/11 and London bombings it can be argued that powers of the judiciary diminished in that area. In the US the President is the Commander in Chief and he can make stricter laws which may violate some rights and the court can do little about it. The Patriot Act enabled phishing expeditions and wire tapping and SC could do little about it. Also the power of the judiciary largely depends on how independent its from other branches of government. Many argue that UK judiciary became more powerful after the Constitutional Reform Act of 2009 where judiciary was separated from the House of Lord and new Supreme Court was established. This gave Supreme Court independence from the Legislature and Executive branches of the government and now their powers have increased significantly due to lesser influence. On the other hand, political systems with a strong executive branch are likely to decrease powers of the judiciary, like in Sri-Lanka where the Chief Justice was impeached in 2012 by Presidents party as she stood up for the opposition. This shows that in some cases the powers of the judiciary are undermined due to strong government. But even in more independent political systems, like UKs, judicial decisions could be influenced by the politicians. In 2012 PM David Cameron urged the Supreme Court to give tougher punishment to the social creators of the August riots and the SC followed his suggestion. In addition the sentencing guidelines are done by Parliament and this significantly decreases the power of the judiciary when deciding on the punishment. In conclusion the powers of the judiciary are similar in many countries but the extent to which the judiciary is powerful depends on the conditions of the government. The judiciary is likely to be more powerful where there is a strong ethic of protection of rights and high level of independence from the government. However, the ability to enforce their decisions will make many judiciaries much more powerful.