LAW250 : Constitutional Law : Opinion and Impact of Procedurals

Question: 

You are an associate to a justice of the High Court of Australia. Your judge wants your opinion about how she should decide this case.

1. Advise your judge of your own opinion about the PROCEDURALISM Do you agree with the view of rights espoused within this theme? Why or why not?

Answer:

Introduction:

Constitutional proceduralism defines the certain principles for the political parties. These principles are defined by the body of law. The study revolves around the norms and rules of the constitutionalism and also interfere by the judicial authority with respect to the content which is stated in the rules. Further, this study also evaluates the opinion of the author regarding the Constitutional proceduralism and determines its impact on the democracy of the country. In this study, how the rights of democracy get impacted due to the constitutional rule, is also elaborated.

OPinion and impact of proceduralism

Proceduralism means strict compliance of the already decided norms and rules. Constitutionalism refers as a legal framework which consists of the ideas, manner of behaviour etc. Proceduralism refers as a framework in which power of the government is determined by the body of law along with it also limits the power of the government.

The connection between the democracy and the constitutionalism is contained a complexity aspect, which is generally not respected. Therefore in the present era, it is essential to think about the manner by which such complexities can be resolved.

The present study revolves around the various opinions of the judges regarding the proceduralism. With the regards, the right of people, socio-economic aspect, and equality of the person are focused.

In the opinion of the John Hart Ely and TRS Allan, at the time of building the decision-making process of the constitution, the specific content of the substantive constitutional norms is secondary in significance. Several proceduralists stated that the, at the time of making the constitutional rules, it must be focused on the design of the governmental process. Therefore it becomes very normal, that the substantive content is constitution is not filled.

Proceduralism leads to the frequent difficulty in the practices of the constitution. The writer John Hart Ely, who belongs from the United States, gave the main emphasis on the constitutional law of the United States. One of the norms of this constitution is that the discrete and insular minorities cannot be included or participated in the political life of the community.  With this regards, the writer Ely, contended that the exclusion from the discrete and insular minorities from the political life leads to the limitation on the government, as it may be possible that the person who belongs to the discrete and insular minority group possess the capability to enter in the political life, but to the restriction in constitutional norms, he/she cannot be eligible to join the political life. Therefore in the opinion of the Ely, the constitutional norms should be representation-reinforcing, which means the person on the basis of their capability should able to join the political life. I do agree with the opinion of the John Hart Ely, as this will leads to the building the constitutional norms as per the capability of the person, not as per the substantial constitutional norms.

Any right which assists from safeguarding the political process right is referred to as a representation-reinforcing. Normally representation reinforcement focuses where the right of the public is harmed. For instance, if the weakest person of the society definite their view, ideas and interest on the political communication, then it is regarded is representation reinforcement. The main aim of this, that not only gives the power to strength people of the country financially but an also weaker section of the people can participate in the discussion, which also leads to bridge the gap between the strong and weaker section of the society.

Further, in Australia, the case of Roach and Rowe leads to the best example of the representation reinforcement. As in this case, the person who is in jail cannot be prevented from the voting as it is given in the rules that the person of the parliament will be chosen by the public. Therefore it does not take effect and cannot be excluded from the voting.

Apart from the above Ely contended that the rules and norms of the constitution assist in increasing the right and the participation of the public, by assuring that all person has an equal right of the participation. However, it is required to build some rules and laws related to the democracy so that the right of democracy not forfeited.

Moreover, due to the constitutional limits, there is frequently weakness can be observed in the practices of the political parties. Along with this, due to the procedural rights interfere by the court go wrong.  Therefore for the effective working of the political parties, there is a requirement of the non-legal norms, which will substitute for the intervention.

On the basis of the above analysis, it has been seen that the main focus of the John Hart Ely is to establish the representation reinforcement, which is essential to safeguarding the right of the democracy.  I do agree with all the viewpoints expressed by the John Hart Ely. Since the constitutionalism and the democracy is closely interconnected. Therefore it is very necessary the build the constitutionalism proceduralism in such a way which will not reduce the right of the people. Further, the suggestion by the John Hart Ely provides the power to the democracy, in which the people have right to accept and reject the things as per their own opinion, and they can raise their issue if they do not agree with the practices prevailing in the system. Along with this representation reinforcement, enhance the capability of the public in the participation of the democratic process effectively. Therefore the laws that underestimate the democracy power should be unenforceable.

From all the above evaluation, it is concluded that constitutional norms provide equal rights to the people and also the procedural right should be built in such a manner which increase the democracy.