1 Madison, The Federalist, No. 51, at 337 (1937). 2 Battersby, Birth of a Nation: Almost, Christian Sci. Mon., Jan. 19, 1996, at 10. 3 Wing, The Palestinian Elections: An International Legal Context, Presentation for The Jerusalem Fund, 2 (Jan. 26, 1996) (on file with Adrien K. Wing). 4 See The Palestinian Authority Basic Law (Fourth Draft), ch. 2, arts. 8-35, reprinted in 1996 Palestine Rep. 15, 17-19 (Special Supplement) [hereinafter 1996 Draft]. Article 8 states: Palestine recognizes and respects the fundamental human rights and freedoms prescribed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, and other Conven- tions and Covenants which secure such rights and freedoms. Palestinian authorities shall adhere to the said international agreements. Id. ch. 2, Article 8. 5 See id. at ch. 6, Article 113, at 24. 6 Utter & Lundsgaard, Judicial Review in the New Nations of Central and Eastern Europe: Some Thoughts from a Comparative Perspective, 54 Ohio St. L.J. 559, 561 (1993). 7 Id.

8 Id. It can also encompass the reviewing of administrative and executive acts in compliance with stat- utes. Id. This, however, is beyond the focus of this article. 9 Sha'ban, Judicial Review And The Consitutionality Of Laws 6 (Abdel-Fatah trans. & Charepoo, ed., 1995) (On file with Sonya Braunschweig). The High Court in decision no. 44/67 stated: The Constitution is the source of all authority and it divides this authority between the three branch- es of the government. Each branch must respect the principles of the Constitution, and thus, if the legislative branch enacts an unconstitutional law, the judiciary must not be forced to apply it. Therefore, the courts cannot apply any legislation which was enacted by an unauthorized body or which was enacted without abiding by the constitution. Id. According to Article 97 of the 1952 Jordanian Constitution, the judges were deemed independent and were "subject to no authority but that of the law." Al-Marayati, Middle Eastern Constitutions and Electoral Laws 163 (1968). 10 Sha'ban, supra note 9. The abolition of the High Court profoundly affected the administration of justice in the West Bank. Shehadeh, The West Bank and the Rule of Law 18 (1980). Before this structural change, the court structure provided three levels of appeal, starting with the Court of First Instance to the Court of Appeals and finally to the High Court. Id. The High Court Justices' duties included appointing judges, disciplining judicial staff, and reviewing complaints made by the Inspector of the Court. Id. at 19. "As justices of the highest court in the country, they acted as guar- dians of the proper functioning and independence of the judiciary. With the elimination of this court, these functions suffered accordingly." Id. 11 I Bhagwati, Role of the Judiciary in Developing Societies: New Challenges, in Law, Justice and the Judiciary: Transnational Trends 35 (Salleh Abas & Sinnadurai, eds., 1988).

12 Von Brunneck, Constitutional Review and Legislation in Western Democracies, in Constitutional Review and Legislation: An International Comparison 233 (Landfried, ed., 1988). Constitutional courts try to make their judgments such that the result and the reasoning will be respected by soci- ety. In. at 232. They must ensure this so that their specific role in society is not damaged. Id. To ensure that their decisions accepted, constitutional judges usually strive internally for consensus and externally for a careful explanation of their reasoning. Id. at 233. 13 Wing, Democracy, Constitutionalism and the Future of Palestine: With a Case Study of Women's Rights 3 (PASS1A 1994). 14 Hengstler, First Steps Toward Justice, A.B.A. J., Feb. 1994, at 52. See also AI-Qasem, Commentary on Draft Basic Law for the Palestinian National Authority for the Transitional Period, 7 Palestine Y.B. Int'1 L. 187 at 196 (1992/94). 15 Id.

16 Id. 17 Al-Qasem, Introduction to The Palestinian Authority Basic Law (Fourth Draft), supra note 4, at 16. For the text of the fourth draft, see 7 Palestine Y.B. lnt'l L. 171 (1992/94). 18 Id. 19 Id. 20 Id. 21 Id. 22 Al-Qasem, supra note 17. 23 1996 Draft, title page, supra note 4. 24 See 1996 Draft ch. 6 Article 109 ("No other authority may interfere in individual cases or in the administration of justice."). This may not be easy to maintain if other Middle Eastern experiences are taken into consideration. For example, in Saudi Arabia, it is the King and his Council of Minis- ters who are the definitive decision makers regarding legislative, executive, and judicial matters. See Amin, Middle East Legal Systems 305-27 (1985) (analyzing the Saudi Arabian legal system). See also Wing, supra note 13, at 29-30 (discussing how the judiciary in most Middle Eastern countries rubber-stamps the policies of the executive branch). 25 See 1996 Draft, ch. 6, Article 113, supra note 4, at 24.

26 See id. Article I 13(I) ("A High Constitutional Court which shall have exclusive jurisdiction of judi- cial review of constitutionality of laws and regulations and construction of legal provisions in the manner prescribed by law"). 27 See id. Article 113(3) ("A High Court of Justice which shall have jurisdiction over administrative and other disputes in the manner prescribed by law."). 28 See id. Article 113(2) ("A Court of Cassation in criminal, civil and commercial matters in the man- ner prescribed by law"). 29 Wing, supra note 13, at 30. 30 1996 Draft ch. 6 Article 113(5), supra note 4, at 24. 31 1 See generally Brzezinski & Garlicki, Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?, 31 Stan. J. Int'l L. 13 (1995) (discussing the expansion of the power of judicial review in Poland after the fall of the Communist Party); Gyandoh, Jr., Interaction of the Judicial and Legislative Processes in Ghana Since Independence, 56 Temple L.Q. 351 (examining the imple- mentation of judicial review in Ghana, a former British colony); Klingsberg, Judicial Review and Hungary's Transition from Communism to Democracy: The Constitutional Court, the Continuity of Law, and the Redefinition of Property Rights, 1992 B.Y.U. L. Rev. 41 (analyzing the role of the newly created Constitutional Court within the emerging democratic state of Hungary). 32 Apartheid South Africa was one common-law country which did not allow judicial review. Utter & Lundsgaard, supra note 6, at 578; Villa-Vicencio, Whither South Africa?: Constitutionalism and Law-Making, 40 Emory L.J. 141, 145-48 (1991) (essay). Apartheid South Africa followed the Brit- ish model of legislative supremacy and thus had no power of judicial review. Motala, Independence of the Judiciary, Prospects and Limitations of Judicial Review in Terms of the United States Model in a New South African Order Towards an Alternative Judicial Structure, 55 Alb. L. Rev. 367, 374- 75 (1991). Although commentators argued that the judicial system in apartheid South Africa was above reproach and that some of the finest judges in the world sat on the bench, the courts applied the government's discriminatory apartheid policies without question. Id. at 375-76.

33 Utter & Lundsgaard, supra note 6, at 577. Common-law nations who have some form of judicial review include, Canada, the United States, India, and Australia. 34 Yardley, Introduction to English Law 3 (1984). 35 Volcansek, Judicial Politics in Europe 203 (1986). 36 "There is under the English constitution no marked or clear distinction between laws which are not fundamental or constitutional laws which are fundamental or constitutional." Utter & Lundsgaard, supra note 6, at 577 (quoting Dicey, Law of the Constitution 89 (9th ed. 1948)). 37 Id. 38 McWhinney, Judicial Review 31 (4th ed. 1969). 39 Before 1688, the monarch was the supreme law of the land. Yardley, supra note 34, at 32. In 1688, Parliament seized power from the monarch in a bloodless revolution, thereby ridding the country of the reigning monarch, James II. Id. James II was replaced by William III and Mary II, on the condi- tion that they recognize parliamentary supremacy. Id. 40 Id. at 60. 41 Id. 42 Yardley, supra note 34, at 60. 43 See Utter & Lundsgaard, supra note 6, at 578 (discussing how a strong "rule of law" tradition can counter parliamentary supremacy in maintaining fundamental freedoms). 44 Bamum, Constitutional Organization and the Protection of Human Rights in Britain and the United States, in Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analy- sis 191 (Schmidhauser, ed., 1981). ).

45 According to A.V. Dicey, a well-known seholar of British constitutional law: [T]he Englishmen whose labours gradually framed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or (what is merely the same thing looked at from the other side) for averting definite wrongs, than upon any declaration of the Rights of Man or of Englishmen. The Habeas Corpus Acts declare no principle and define no rights, but they are for practical pur- poses worth a hundred constitutional articles guaranteeing liberty. Id. (citing Dicey, An Introduction to the Study of the Law of the Constitution 199 (1967)). 46 Id. 47 For example, see Van der Vyver, Depriving Westminister of Its Moral Constraints: A Survey of Constitutional Development in South Africa, 20 Harv. C.R.-C.L. L. Rev. 291, 306-07 (1985); Villa- Vicencio, supra note 32, at 145-48. 48 Brewer-Carias, Judicial Review in Comparative Law 17 (1989) (citing Wade & Phillips, Constitu- tional and Administrative Law 53 (9th ed. 1985)). 49 Yardley, supra note 34, at 76. 50 For an extensive listing of how these branches are closely connected, see id. at 76-78. 51 Brewer-Carias, supra note 48, at 17. 52 Id. 53 Id. at 19.

54 Id. 55 Barton et al., Law in Radically Different Cultures 2 (1983). 56 Article VI of the U.S. Constitution states that the Constitution is "the supreme Law of the Land."

57 See Barnum, supra note 44, at 184-85. 58 5 U.S. (1 Cranch) 137 (1803). 59 Id. at 177-78. 60 Id. at 177. 61 Utter & Lundsgaard, supra note 6, at 579. 62 Brewer-Carias, supra note 48, at 137. "There is now general, if not universal, agreement that when the Supreme Court has decided a case on the basis that a particular statute (or particular executive action) is unconstitutional, the judgment in that case is binding not only on the States but on the other two federal branches." Scalia, Federal Constitutional Guarantees of Individual Rights in the United States of America, in Human Rights and Judicial Review: A Comparative Perspective 59 (Beatty, ed., 1994). 63 See U.S. Const. Article 1, ° 8. 64 Barnum, supra note 44, at 185. 65 Brewer-Carias, supra note 48, at 137. 66 Barnum, supra note 44, at 187.

67 This has been due in part because of the many legal layers that previously existed in the area now known as Israel, including Ottoman civil law, religious law (Christianity, Islam, and Judaism), and British common law. For a legal study of these layers, see Wing, Legal Decision-Making During the Palestinian Intifada: Embryonic Self-Rule, 18 Yale J. Int'l L. 95, 102-07 (1993). Other factors include Israel's parliamentary system of government and a unitary state, rather than a federal state. 68 Rapaczynski, Bibliographical Essay: The Influence of U.S. Constitutionalism Abroad, in Constitu- tionalism and Rights 405-62, 457 (1990). 69 Id. Israeli commentators often use American constitutional theories and ideas to advocate the strengthening of judicial review within the Israeli system. Id. at 459. 70 Edelman, Judicial Review and Israel's Struggle for a Written Constitution, in Comparative Judicial Review and Public Policy I57-75, 157 (Jackson & Tate, eds., 1992). 71 Schorsch & Shoham, The Legal System of Israel in Modern Legal Systems Cyclopedia 5.120.2 to 5.120.39, at 5.120.12. 72 The nine Basic Laws include The Knesset (1958), Israel Land Administration (1960), The President (1974), The Government (1968), The State Economy (1976), The Armed Forces (1976), Jerusalem, The Capital of Israel (1980), The Judiciary (1984), and The State Comptroller (1988). Edelman, supra note 70, at 161. 1. 73 Id. 74 Id. at 157. 75 Shapira, Judicial Review Without a Constitution: The Israeli Paradox, 56 Temple L.Q. 405, 417 (1983).

76 Edelman, supra note 70, at 162. With regard to the Supreme Court's general role in reviewing Knes- set legislation, the Court has stated that "[h]owever negative the opinion of the judiciary may be about [an] arrangement, in the absence of a constitution, the Knesset possesses the authority and power to pass a discriminatory statute, and if it has done so, there is not option but to act on it." Id. at 172 (citing Cohen v. Minister ofLabor and Welfare, 41 P.D. 540, 543 (1986)). 77 Shapira, supra note 75. 78 Id. at 171. 79 See Edelman, supra note 70, at 170 (discussing the supremacy of the Knesset in light of the Supreme Court's limited use of judicial review). 80 According to the Basic Law, the Supreme Court acts as a high court of justice when adjudicating administrative issues. Shetreet, Justice in Israel.� A Study of the Israeli Judiciary 95 (1994). Because the Israeli judicial system does not have a separate administrative court system, the Court has been overburdened by the amount of cases it must hear. Id. 81 Shapira, supra note 75, at 418. For a discussion of reasons why the Court has extended its judicial review power in the area of administration actions, see Shetreet, supra note 80, at 387. 82 Id. at 385. 83 Shapira, supra note 75, at 419. 84 In. 85 Id.

86 Hereinafter referred to as S. Afr. Interim Constitution. 87 See Motala, Socioeconomic Rights, Federalism and the Courts: Comparative Lessons for South Afri- ca, 1 l2 S. Afr. L.J. 61 (1995) [hereinafter Motala, Socioeconomic Rights]. For a discussion of apart- heid and its effect on the rule of law, see Motala, Constitutional Options for a Democratic South Africa 70-82 (1994) [hereinafter Motala, Constitutional Options]. 88 See Motala, Socioeconomic Rights, supra note 87; supra notes 33-42 and accompanying text (dis- cussing the role of parliamentary supremacy in the British context). "The most salient departure from the [British] model is in South Africa where the model [is] applied to the white population only." Motala, Constitutional Options, supra note 87, at 70. 89 Motala, Socioeconomic Rights, supra note 87, at 64 (citing to Chief Justice Steyns quote in Corder, Judges at Work: The Role and Attitudes of the South African Appellate Judiciary, 1910-1950 at 12 (1984). 90 "The traditional view was that the judiciary had to stand aloof from the public, politics and the media, and was not to indulge in the exercise of questioning the morality or justness of a law." Motala, Socioeconomic Rights, supra note 87, at 64. 91 S. Afr. Interim Const. chap. 3. 92 Cachalia et al., Fundamental Rights in the New Constitution 4 ( 1994). 93 S Afr. Interim Const. ° 98. 94 Motala, Socioeconomic Rights, supra note 87, at 62. 95 See The State v. Tmakwanyane & Mchunu, Case No. CCT/3/94, June 6, 1995.

96 Cappelletti, Judicial Review in the Contemporary World 45 (1971). 97 Id. 98 Id. at 27. 99 Id. 100 See Brewer-Carias, supra note 48, at 185.

101 Id. at 138. 102 Tate, Comparative Judicial Review and Public Policy: Concepts and Overview, in Comparative Judicial Review and Public Policy 7 (Jackson & Tate, eds., 1992). 103 Id.; Brewer-Carias, supra note 48, at 138. 104 Tate, supra note 102, at 7. 105 Brewer-Carias, supra note 48, at 127. 106 Id. at 138. 107 Id. 108 28 U.S.C. "1331 (1995). 109 28 U.S.C. ° 1332 (1995). 110 28 U.S.C. ° 1345, 1346 (1995). 111 28 U.S.C. "2241 (1995) 112 28 U.S.C. ° 1343 (1995). 113 Brewer-Carias, supra note 48, at 138. 114 Id.

115 Id. at 139. 116 Id. 117 Id. 118 Brewer-Carias, supra note 48, at 140. 119 Id. at 141. 120 Id. at 142. 121 S. Afr. Interim Const. ° 98(2). 122 Cachalia et al., supra note 92, at 13. 123 Id. at 64. 124 Id. at 65.

125 S. Afr. Interim Const. ° 8 (1) and (2); Motala, Socioeconomic Rights, supra note 87, at 65. 126 Motala, Socioeconomic Rights, supra note 87, at 65. 127 Motala, Constitutional Options, supra note 87, at 249. 128 Id. 129 Id. 130 Id. 131 See Bisharat, Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank, 125 (1989). 132 Id. at 125-26. 133 Id. at 126.

134 Motala, Constitutional Options, supra note 87, at 249. 135 A priori review requires that laws be referred to the appropriate court for review before promulga- tion, but after the final adoption by parliament. Stone, Abstract Constitutional Review and Policy Making in Western Europe, in Comparative Judicial Review and Public Policy 41-57, 45 (Jackson & Tate, eds., 1992). 136 A posteriori review requires laws to be referred to the appropriate court for review after promulga- tion. Id. 137 Tate, supra note 102, at 6. 138 Id.

139 Aucoin, Judicial Review in France: Access of the Individual Under French and European Law in the Aftermath ofFrance's Rejection ofBicentennial Reform, 15 B.C. Int'l & Comp. L. Rev. 443 (1992). 140 Id. at 444-45. 141 See Id. at 445. 142 Id. 143 See Favoreu, Constitutional Review in Europe, in Constitutionalism and Rights 38-62 (Rosenthal & Henkin, eds., 1990). Today, the Council exercises its power in not only issues pertaining to constitu- tional law, but also criminal, civil, procedural, and international law. Lafon, France, in The Global Expansion ofJudicial Power 289-305, 298 (Tate & Vallinder, eds., 1995). 144 Stone, supra note 135, at 47. 145 Id. at 48. Initially, the French Constitution only allowed the President of the Republic, the Prime Minister, the President of the Senate, or the President of the National Assembly to ask for legislative review. Aucoin, supra note 139, at 449. In 1974, however, this constitutional provision was amend- ed to include "sixty senators or sixty representatives of the National Assembly." Id. at 450.

146 Id. at 48. If, however, a bill is promulgated without being sent to the Council, the enacted law cannot be scrutinized or reviewed by the Council or another court. Id. 147 See Brewer-Carias, supra note 48, at 257 (discussing the time limit in which the Council must make a decision and the possibility for a reduced period of review in emergency situations). 148 Favoreu, The Constitutional Council and Parliament in France, in Constitutional Review and Legis- lation: An International Comparison 81-108, 92 (Landfried, ed., 1988). 149 Id. at 104. This process is known as "double-barreled" review. Id. 150 Brewer-Carias, supra note 48, at 252. 151 Aucoin, supra note 139, at 446-47 (citing David, French Law 23 (Kindred, trans., 1972)). 152 Id. 153 Id. at 447.

154 Id. at n.25. 155 Id. at 449. 156 See Cappelletti, supra note 96, at 2-6 (discussing the role of political control of constitutionality within the French judicial system). 157 Brewer-Carias, supra note, 48, at 253. The Council's influence in this sphere is due in part to the political nature of the nine appointed judges: three are appointed by the President of the Republic, three by the President of the National Assembly, and three by the Senate. French Const. Article 56. 158 Private citizens may be able to overtum executive actions by bringing suit within an administrative court. Aucoin, supra note 139, at 461. Executive acts, however, can only be overturned if the admin- istrative court finds the government acted in "excess of [its] power" which ultimately violated fun- damental rights. Id. (citing Dreyfus & D'Arcy, Ges Institutions Politiques et Administrative de la France 155, 387 (2d ed., 1987). 159 Cappelletti, supra note 96, at 4-5. 160 Aucoin, supra note 139, at 454. 161 Id. (case citations omitted). 162 Id. at 455. See Deeision 85-187 of Jan. 25 1985, C. const., 1985 D.S. Jur. 361 (Fr.) (declaring that a 1984 law implementing emergency rule in New Caledonia was reviewable, because the Court had to determine the constitutionality of the 1985 amendment which modified the 1984 law). 163 Id. at 455-56.

164 US. Const. Article III, ° 2. 165 Brewer-Carias, supra note 48, at 144. 166 United States v. Richardson 418 U.S. 166 (1974); De Funis v. Odegaard, 416 U.S. 312 (1974). 167 Brewer-Carias, supra note 48, at 146. 168 Id. 169 Literally means "friend of the court." Black, Black's Law Dictionary 54 (Abridged 6th ed., 1991). ). Amicus curiae briefs are often filed in appeals cases which influence public interest. Id. Permission to file is needed for those being sent to U.S. Court of Appeals, unless the party is a government offi- cial or agency. Id. 170 Id. 171 Warth v. Seldin, 422 U.S. 490, 500 (1975) ("the courts would be called upon to decide abstract ques- tions of wide publie significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights"). 172 See Brewer-Carias, supra note 48, at 146-47. 173 See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810) ("The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other."). 174 Brewer-Carias, supra note 48, at 147� Burton v. United States, 196 U.S. 283, 295 (1905) ("It is not the habit of the eourt to decide questions of a constitutional nature unless absolutely necessary to the decision ofthe case."). 175 Political questions usually involve foreign policy issues and internal matters of the government. Brewer-Carias, supra note 48, at 148.

176 Id. at 150. 177 See Brown v. Board ofEducation, 347 U.S. 483 (1954) (overturning Plessey v. Ferguson, 163 U.S. 537 (1896), which promoted the doctrine of separate but equal). 178 Cappelletti, supra note 96, at 81. 179 See Ex parte Randolph, 20 F.Cas. 242, 254 (1833) ("If [legislative acts] become indispensably nec- essary to the case, the Court must meet and decide them; but if the case may be determined on other points, a just respect for the legislative requires that the obligation of its laws should not be unneces- sarily and wantonly assailed"). 180 See Connally v. General Construction Co., 269 U.S. 385 (1926) (holding that a statute will be void for vagueness if a person "of common intelligence must necessarily guess at its meaning and differ as to its application."). 181 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (allowing delegation of powers to the executive when "a degree of discretion and freedom from statutory restriction which would not bc admissible were domestic affairs alone involved"). The delegation rules since the 1930s have been relaxed; it is unlikely that excessive delegation will be an issue when Congress lays down explicit rules to guide the agency with the delegated powers. 182 Cappelletti, supra note 96, at 82. 183 Id. 184 See Brewer-Carias, supra note 48, at 147. 185 Id. (quoting Bickel, The Least Dangerous Branch 128 (1962)).

186 Utter & Lundsgaard, supra note 6, at 570. 187 Id. 188 Kommers, German Constitutionalism: A Prolegomenon, 40 Emory L.J. 837, 845-46 (1991). Previ- ous German Constitutions could easily be amended and were not binding in all areas. Id. at 846. 189 Utter & Lundsgaard, supra note 6, at 570. 190 Brewer-Carias, supra note 48, at 204. 191 Kommers, supra note 188, at 850-51 (quoting Benda, Relationship of the Bundestag and the Federal Constitutional Court 7 (unpublished manuscript)). 192 Landfried, Constitutional Review and Legislation in the Federal Republic of Germany, in Constitu- tional Review and Legislation: An International Comparison, 147-67, 152 (Landfried, ed., 1988). 193 Brewer-Carias, supra note 48, at 212. 194 Id. 195 Id. 196 See Stone, supra note 135, at 46. This means that ninety-nine percent of the cases heard in the Court are through an individual's direct appeal that some actual right has been violated. Id.

197 German Basic Law, Article 93, ° 2, no. 2. 198 Id. 199 Landfried, supra note 192, at 152. 200 Stone, supra note 135, at 48. 201 Brewer-Carias, supra note 48, at 210. 202 Favoreu, supra note 143, at 52. 203 Brewer-Carias, supra note 48, at 211. 1 . 204 Id. 205 Favoreu, supra note 143, at 52. Nearly all of the individual petitions challenged administrative actions or judicial judgments, and not the constitutionality of a legislative act. Id. 206 Kommers, supra note 188, at 841-42. 207 Id. at 842. 208 Id.

209 Neuborne, Justiciability, Remedies, and the Burger Court, in The Burger Years 3-20, 3 (Schwartz, ed., 1987). 210 Kommers, supra note 188, at 840-41. 211 Id. 1 212 German Basic Law Article 93(2). 213 See Kommers, supra note 188, at n.9. 214 Id. at 843 (emphasis added). 215 Stone, supra note 135, at 52. The 1967 German legislature almost copied word-for-word, comma- for-comma, the 1966 Court's decision regarding electoral finance reform. Id. at 53. 216 Id. at 54. 217 Id. at 53. 218 For example, during 1983 the Socialist Workers' Party in Spain tried to pass legislative and constitu- tional reforms. Stone, supra note 135, at 54. From 1983 to 1985, the opposition sent six laws to the Constitutional Court for judicial review. Id. The Court found three out of the six to be unconstitu- tional in whole or in part. Id. This process caused the great delays to the Spanish government, as the court took over a year to give its decision in five of the six cases. Id. 219 Id. 220 Stone, supra note 135, at 54.

221 See Brewer-Carias, supra note 48, at 211. 1 .

222 See Section IV., A., 4. (discussing our proposal for a constitutionally enumerated form of review based on the South African model). 223 See Section IV., B., 3. (discussing our proposal for a centralized constitutional court). 224 See Section IV., C., 4. (discussing our proposal for a mixed system of judicial review based on Ger- man and French influences).

225 Gadbois, Jr., The Institutionalization of the Supreme Court of India, in Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis 111-42, 133 (Schmidhauser, ed., 1981). 226 Id. 227 Id. at 124. 228 Id. 229 See Id. For example, Indian judicial salaries have remained the same since the 1950s, as the Indian Constitution fixed the jurists' salaries. Id. This has kept the most competent lawyers and scholars from seeking governmental employment. One chief justice stated that out of 27 members of the bar who had been offered judgeships, none had accepted the offer. Id. at 125.

230 See supra notes 127-30 and accompanying text (describing the function of the South African Judi- cial Service Commission). 231 See supra notes 129-30 and accompanying text (examining South Africa's implementation of a Judi- cial Service Commission to nominate candidates to serve on the Constitutional Court). 232 See 1996 Draft, ch. 6, Article 112 ("Judges shall be irremovable, and the law shall regulate their dis- ciplinary accountability."). 233 Article 11, ° 4 states that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Article II, ° 4. There has been much debate, however, over the meaning of "high crimes and misdemeanors" as it is a vague standard.

234 For a discussion of these courts and the human rights violations which have occurred since its incep- tion, see Amnesty International, Trial at Midnight: Secret, Summary, Unfair Trials in Gaza (June 1995), reproduced in 8 Palestine Y.B. Int'l L. 227 (1994/5). For the decree establishing these courts, see Id., at 141. 1. 235 Motala, supra note 32, at 368. 236 1 Montesquieu, The Spirit of the Laws 152 (1900). 237 Brewer-Carias, supra note 48, at 20.

238 Motala, supra note 32, at 367. 239 Clark, Judicial Protection of the Constitudon in Latin America, 2 Hastings Const. L.Q. 405, 420 (1975). 240 Id. at 421 The International Court of Justice has defined judicial independence as: "Independence of the judiciary means that every judge is free to decide matters before him in accordance with his assess- ment of the facts and his understanding of the law without any improper influences, inducements or pressures, direct or indirect, from any quarter or for whatever reason." 8 CIJL Bulletin (Oct. 1981 ). 241 See Section V., B., 5. (explaining our proposal for holding jurists accountable).

242 See Sections IV., A., 4. and IV., B., 3. 243 See Section IV., C., 4. 244 See Section V., B., I. 245 See Section V., B., 2.

246 See Section V., B., 3. 247 See Section V., B., 4. 248 See Section V., B., 5. 249 Merrymann, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, in Law in Radically Different Cultures 5-11, 8 (Barton et al., 1983).