The relationship between the constitution and ordinary statutes

Suggested clause:

'- In the case of conflicts between the wording of the constitution and ordinary statutes, the constitution shall have precedence and prevail.

- Ordinary legislation (enacted before and after the new constitution) must, as far as possible, be read so as to be compatible with the constitution.

- If it is not possible to read an ordinary statute in a way which is compatible with the constitution, then the offending provision in the statute should be declared unenforceable by the courts and neither the State nor any other person is entitled to rely upon an unenforceable provision.

- The [Judiciary? or other appropriate non-governmental body] shall publish details of any unenforceable provisions of the constitution, either as annotations within or as additional notes appended to the constitution.'

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edited on Apr 17, 2015 by Ian Smith

Ian Smith Apr 5, 2015

Dear All,

I am posting a quick comment here and in my other ideas.

Firstly, I want to say how much I have enjoyed seeing all of your contributions on this and other ideas and how impressed I am with the range of expertise and erudition which has filled these debates.

Secondly, I wish to put forward a couple of suggestions as to a way forward at this stage.  They are:

A.   I suggest that we all refrain from further voting until the ideas have been refined and represented and have then been debated for a while.  My thinking here is that we will want to see the reshaped ideas and see the comments on those refined ideas before we decide whether they are to be voted up or down,  I do not think that we should refrain from voting on comments but perhaps try not to vote to hastily on them.

B.  Now that the hurly burly of the "Hacking" phase (some of it quite savage) has passed, I hope and wish that we will adopt a more collaborative and less combative approach in our commentary, so that commentary is given a chance to be constructive and really do the job of refining the ideas in question.

C.  I would hope that we can refrain from attacking the very existence of the idea under discussion in this phase or the fact that it has successfully gone through to this phase against the wishes of those who voted it down.  I sincerely hope that the previous critics of an idea, will still respect that it found favour with the crowd and now help to refine the idea in this phase.

Thirdly, I will try my best not to introduce any more typos and mangled phrases! 

Best wishes for the holiday week end!

Ian 

Ian Smith Apr 7, 2015

Dear All,

Before I draft a suggested clause for the constitution, I should be very grateful if you would let me have any further thoughts on this idea and in particular the form of a constitutional clause.

Kind regards,

Ian

Ian Smith Apr 10, 2015

Dear All,

I have now drafted a suggested clause.  You will see that it needs further refinement in terms of the name of the state agency which will be responsible for publishing details of unenforceable provisions.  John from Jersey and others are, I think, working on that issue in another idea.

Kind regards,

Ian

John Z Apr 10, 2015

Hi Ian.

My proposal was to publish the text of the Constitution, with supporting case law/statutes/treaties/ etc... for each Constitutional provision.  So (for instance) as to case law, the citations would include relevant cases (whether the Court ruled the issue as Constitutional or whether un-Constitutional);  it would not include just cases that ruled the issue unenforceable.  As for the entity writing it, likely the Judiciary.   

Mark Cooke Apr 17, 2015

I suggest that instead of the final sub clause,  you insert a requirement that Parliament, or the body that made the law is required to amend it to make it compatible within six months, failing which the whole statute is treated as repealed .

This idea does not belong in this section,  it is not about constitutional amendment

 

Ian Smith Apr 17, 2015

Thanks for your comment Mark, I thought about that sort of thing but decided against it and also do not consider it necessary that a whole statute be rendered unenforceable as it may only have one offending provision.   Kind regards, Ian

Rob G Apr 17, 2015

One tiny tweak to the proposed wording, in the first sentence, it should be "the constitution shall have precedence and prevail" not "the constitution should have precedence and prevail" - in a legal text, "should" implies a degree of optionality.

Ian Smith Apr 17, 2015

Thanks Rob, just tweaked as you suggested.  Kind regards, Ian

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