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From Negative to Positive Legislator? Response to Unconstitutional Legislative Omission As a Case Study in the Changing Roles of Constitutional Courts Author Al-Dulaimi, Ahmed Oudah Published 2018-08 Thesis Type Thesis (PhD Doctorate) School School of Govt & Int Relations DOI https://doi.org/10.25904/1912/3526 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/381384 Griffith Research Online https://research-repository.griffith.edu.au From Negative to Positive Legislator? Response to Unconstitutional Legislative Omission As a Case Study in the Changing Roles of Constitutional Courts Ahmed Oudah Mohammed AL-Dulaimi BA LLB (Anbar University), MA LL.M. (Anbar University) The School of Government and International Relations Griffith Business School Griffith University Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy. August 2018 From Negative to Positive Legislator? Response to Unconstitutional Legislative Omission As a Case Study in the Changing Roles of Constitutional Courts Ahmed Oudah Mohammed AL-Dulaimi PhD Thesis School of Government & International Relations Griffith University, 2018 Abstract An important but challenging development appears to be occurring in the character of some constitutional courts—a shift from their traditional role as a negative legislator to a significant role as a positive legislator. Under this shift, a constitutional court is no longer confined to declaring the unconstitutionality of statutes if they are contrary to the constitution and simply annulling them, but rather takes on a positive power to create statute law. The case study examined here is the power to fill the gaps caused by unconstitutional legislative omissions (ULOs). Such a power authorises a constitutional court to declare what a missing law should contain, and to draft and promulgate that law, thus assuming the role of positive legislators by enacting temporary or provisional rules on specific matters. This development in the power of constitutional courts provokes vital questions. Why has such a role developed? What are its most important manifestations? What are the benefits and risks of such powers? Do the benefits outweigh the risks, and how might benefits be maximised and risks minimised? In response to these questions, this study provides a deeper understanding of the apparent shift in constitutional courts’ power from negative to positive legislator, and its implications for countries struggling with establishment and maintenance of democracy. The study applies lessons from international experience of powers to rectify ULOs in 17 countries, to examine whether such powers help address these challenges in more legal systems, and if so, how. It finds that some forms of such a power do have a positive contribution to make in response to serious constitutional challenges, but two things are required: a general recognition that the traditional understanding of a constitutional court as a purely negative legislator is no longer sufficient to explain and evaluate its role, once entrusted with such a power; and a new approach to the design of such a power, such as developed and applied in this thesis, which enables this ‘positive legislator’ role to be granted in a manner that still protects core values of liberal democracy. ii Statement of Originality This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Disclosure One (under review) publication (Legislative Omission as a new constitutional Dilemma) has been drawn from this research (chapter Four), although in a slightly different form to how it appears in this dissertation: Ahmed Oudah Mohammed AL-Dulaimi iii Acknowledgment This thesis is dedicated to my country Iraq for giving me this opportunity to complete my PhD at Griffith University, and to my family and wife for their unconditional love and support. A special thanks to my supervisors, Professor A J Brown and Professor Haig Patapan for their guidance, valuable advice and insightful comments. Their direction has helped me throughout the duration of the research and writing of this thesis. I could not imagine having better supervisors throughout my PhD studies. I would also like to extend my thanks to Professor Daniela Urosa for her valuable advice and suggestions. Professor Alla Hussain, I would also like to thank you for your continuous support to complete this journey. My project would not have been possible without the generous funding award that I received from the University of Anbar in Iraq. I would like to thank the staff in the Iraqi Cultural Attaché office in Canberra for their administrative support to minimise the difficulties Iraqi students have faced during their studies abroad. I would like to give a special thanks to my family. Words cannot express how grateful I am to my father, mother, brothers and sisters for all the sacrifices that they have made on my behalf. Your prayers for me is what have sustained me thus far. A special acknowledgment is dedicated to my dear wife, who has been with me all these years and has made them the best years of my life. Thank you for your understanding and love during the past few years. Your support and encouragement were in the end, what made this dissertation possible. I would also like to thank my fellow PhD colleagues in the School of Government and International Relations at Griffith University for their support and for all the great times that we have shared. I am particularly thankful to Lizzy Ambler for her friendship and academic support in the completion of this thesis. Your support and encouragement have meant a lot to me over the years; what you have done will never be forgotten. I also would like to thank my PhD colleagues Jacob Deem, Caitlin Mollica and Lucy West for assisting me with proof-reading. A special thanks are also owed to Julie Howe, Angela MacDonald and Tracee McPate for their administrative support over the years. This thesis would not have been possible without Kay Miller iv and the rest of the staff in the Griffith English Language Institute that provided support in the initial phases of this PhD. My thanks also go to my friends in Brisbane Anmar, Rafaat, Mazin, Nfiz Hamid, Ali AL-Kurdi and Youssef for their support, and friendship. v Contents Introduction .............................................................................................. 1 1.1 Thesis topic ................................................................................................................. 1 1.2 Traditional understanding of the role of constitutional courts .................................... 4 1.3 Shift in the role of constitutional courts towards positive legislators ......................... 9 1.4 ULOs as a case study in the changing roles of constitutional courts ........................ 10 1.5 Research questions .................................................................................................... 15 1.6 Research methodology .............................................................................................. 16 1.7 Thesis overview ........................................................................................................ 19 From negative to positive legislators … the powers of constitutional courts 23 2.1 Introduction ............................................................................................................... 23 2.2 Concepts of negative legislator and positive legislator ............................................. 24 2.2.1 Negative legislator ................................................................................. 24 2.2.2 Positive legislator .................................................................................. 27 2.3 Constrained powers of constitutional courts ............................................................. 30 2.3.1 Judicial review ....................................................................................... 31 2.3.2 Constitutional interpretation .................................................................. 36 2.3.3 Protection of constitutional rights ......................................................... 37 2.4 Proportionality as a new test for the judicial review of legislation ........................... 40 2.5 Judges as lawmakers (judicial lawmaking) ............................................................... 43 2.6 Constitutional courts as activists (judicial activism) ................................................. 48 2.7 Conclusion ................................................................................................................ 56 Why ‘negative’ legislator? The key constitutional values limiting the courts’ role ................................................................................................................. 57 3.1 Introduction ............................................................................................................... 57 3.2 Separation of powers ................................................................................................. 59 3.3 Rule of law ................................................................................................................ 67 3.4 Parliamentary sovereignty ........................................................................................

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