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Report No. 95

3.13. McWhinney's view.-

A distinguished writer1 on public law has this to say about the machinery of judicial review of unconstitutional acts as adopted in the newly independent and self-governing countries of South East Asia and Africa:

"The main constitutional stereotypes for judicial review have, upto date, been derived from the English-speaking countries whose public law systems-whether involving a presidential-executive and formal separation of powers on the American model, or else a parliamentary-executive, on the English and general Commonwealth model-have all rested on an essentially common law legal base involving, at least the common law derived notions of precedents, case law, and judicial reasoning. We have tended, in the Commonwealth countries at least, to ignore the advantage of judicial expertise, in terms either of specialist Supreme Courts or else of specialist banes within Supreme Courts whose jurisdiction is limited by subjectmatter-forgetting that, for all practical purposes since the reforms effected by the judiciary Act of 1925, the United States Supreme Court has become a specialist public law or constitutional tribunal."

In regard to the United States, Mr. Justice Frankfurter acknowledged this fact when he said,2 "Issues of public law, then, constitute the stuff of Supreme Court litigation". "We have", Chief Justice Warren Burger3 said "a great court system in the United States, but it is not perfect. The Commission should look at the Court system of every other large highly industrialised country to see whether we could learn something from them". Chief Justice Warren Burger went on further, to add:

"France, for one, has a nine-member Constitutional Council that resolves only constitutional questions. Another French court is the court of last resort for all administrative matters, and there's another court for everything else. In effect, they have three Supreme Courts, and that is a fairly common pattern throughout Europe, from Sweden on the north down to Italy".

1. McWhinney Judicial Review, (1969), p. 235.

2. Frankfurter in (1928) 42 Harvard Law Review 18.

3. "Quality of Justice" (record of an interview) (October 1983) SPAN, pp. 35-38.

Constitution Division within the Supreme Court Back

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