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Hiebert, Janet L. --- "Constitutional Experimentation: Rethinking How a Bill of Rights Functions" [2011] ELECD 377; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 17

Section Title: Constitutional Experimentation: Rethinking How a Bill of Rights Functions

Author(s): Hiebert, Janet L.

Number of pages: 23

Extract:

17. Constitutional experimentation: rethinking how a bill
of rights functions
Janet L. Hiebert



Legal and political scholars are curious about how recently adopted bills of rights in Canada,
New Zealand, the United Kingdom, the Australian Capital Territory (ACT) and the
Australian state of Victoria conceive of the project of rights protection. In choosing to adopt
a bill of rights, these Westminster parliamentary systems have set aside constitutional ortho-
doxy, which presumed the necessity of having to make a stark choice between parliamentary
supremacy and granting courts authority to determine the validity of legislation where rights
are implicated.1 They have charted a new path that neither emulates the European post-war
reliance on constitutional courts based on the German model, nor accepts judicial monism
associated with American-style judicial review, despite its being said to have provided `the
inspiration for the rights-protecting constitutions of liberal democracies throughout the
world' (Weinrib 2006, 84).
Like more conventional approaches, these new bills of rights codify rights that are used to
assess legislation and executive actions, and authorize judicial review to evaluate whether
state actions are consistent with protected rights. Yet, at the same time, they distinguish the
concept of judicial review from the idea that courts have final authority to determine the legit-
imacy of state actions where rights are implicated. In so doing, they accept the legitimacy of
legislative dissent from judicial rulings, which is possible by conceiving of the scope of judi-
cial power as more limited than in the ...