Application For Judicial Review Research Articles

Administrative Law as a Source of Rights

This article challenges the pervasive assumption that judicial review of administrative action is not concerned with rights. Making a break from this orthodoxy, it proposes a theory of judicial review that suggests that its purpose is to protect distinctive administrative law rights held by those subject to public administrative power. This rights‐based theory makes sense of the structure of applications for judicial review in which, paradigmatically, an individual subject to an administrative decision makes a claim against the state that the public official responsible for that decision failed to meet the relevant administrative law standards, and accordingly demands a remedy. The bulk of the article is dedicated to addressing the major objections to a rights‐based theory, including those arising from public interest standing and the nature of judicial review remedies. The analysis shows that each of these objections fails, clearing the ground for a fuller development of a rights‐based theory of judicial review in future work.

Literature Review: Peran Serikat Pekerja Dalam Menyelesaikan Perselisihan Hubungan Industrial Pada Beberapa Studi Kasus Perusahaan

The presence of workers in the company is dominated by executives. They often have conflicting interests for the company's activities. In order to help workers' positions remain relevant and recognized, workers need a Labor Union. In an industrial environment, it is normal for disputes to occur and the role of trade unions is needed to mediate the interests of both. Therefore, the expected goals are to explain the role of trade unions to address industrial relations disputes and the efforts that they attempt. This study determines literature review as the method by accumulating journals and collecting eight articles that meet the criteria. After having reference materials, the researcher will analyze the data based on a collection of these studies which the researcher will generalize into a literature review paper. The results of this research are that trade unions act as assistants, bodyguards, representatives, supervisors, and mediators and prioritize the settlement of disputes internally and amicably. Efforts made by trade unions include carrying out bipartite and tripartite negotiations consisting of mediation, arbitration and conciliation, as well as the industrial relations court, submitting a letter of application for Judicial Review to the Constitutional Court, and honing the skills of trade union members.

The Decision of The Constitutional Court on Verification of Political Parties

Political parties are the political suprastructure in a democratic country as a means for citizens to occupy political positions through general elections. The requirements for verifying political parties participating in an election are always contained in every election law making it difficult for political parties to pass verification as well as excluding several political parties that have met certain verification requirements so that they are immediately declared as participants in the next elections. This exception is not in accordance with several Constitutional Court Decisions which have the same substance which consistently declares unconstitutional, except for the Constitutional Court Decision Number 55/PUU-XVIII/2020. The research method used is normative juridical regarding laws and regulations, namely Law Number 7 of 2017 concerning Elections, accompanied by comparative study of jurisprudence Constitutional Court's decision regarding an application for judicial review of political party verification accompanied by literature studies. The research analysis uses a qualitative approach to understand more deeply the legal phenomena that occur and examines the substance to obtain specific conclusions on what is studied. That decision based on a discussion of this research is inconsistent because the arguments and materials of the 1945 Constitution used are different and the Constitutional Court is not required to use jurisprudence as a basis for consideration even though there are similarities in substance.

McGuigan, re Application for Judicial Review

McGuigan, re Application for Judicial Review

The Union in Court, Part 2: Allister and others v Northern Ireland Secretary [2022] NICA 15

A case commentary on Allister and others v Northern Ireland Secretary [2022] NICA 15. This is a follow-up to a case commentary on Allister and others’ Application for Judicial Review [2021] NIQB 6 published in NILQ 73.1.

HUKUM ANJURAN TERTULIS MEDIATOR DALAM PENYELESAIAN PERSELISIHAN HUBUNGAN INDUSTRIAL (pasca Putusan Mahkamah Konstitusi No. 68/PUU-XIII/2015)

This study aims to analyze how the legal force of written recommendations on settling industrial relations disputes was issued by mediators after the Constitutional Court Decision Number: 68/PUU-XIII/2015. The type of research used in this research is normative research or doctrinal research. And the approach used to answer the problem is the Legislative Approach (Statute Approach). This research is motivated by the application of Judicial Review by several workers to the Constitutional Court on the word 'recommendation' in Article 13 paragraph (2) letter a and Article 23 paragraph (2) letter an of Law Number 2 of 2004 concerning Settlement of Industrial Relations Disputes. The results of this study indicate that the settlement of industrial relations disputes through mediation is mandatory, starting from the decision of Constitutional Court Number: 68/PUU-XIII/2015. Written recommendations are seen as part of industrial relations dispute settlement minutes. The Petitioner's application for the word "as a form of settlement agreement through mediation or conciliation" was changed by the Court to "in the form of minutes of settlement through mediation or conciliation".

PENYELESAIAN DISHARMONI PERATURAN PERUNDANG-UNDANGAN MELALUI JALUR MEDIASI

The conflict of norms or disharmony the rules in Indonesia is a legal problem often happen. This case is because some rules from the substance overlap betwen the rules. The Dispute of Disharmony the rules with mediation is a perfect way from The Rule of Ministry of Law and Human Right Number 32 Year 2017 about Procedures of dipute solving the rules with Non Litigation . With the purpose to create harmonization the rules with mediation for product of law. This concept is born from a problem whereas many overlap regulation and the implication is created irregularity law in a society. So that reducing the existation of law as a the intergration to create harmony and compatibility as a way to fullfill interest of the people. The implication of mediation to solve the dishamony of rules as be setted by Pemermenkum 2/2019 can be seen on pressing the count of rules have conflict (ambivalensi) and be able to reducing count of the application of judicial review will submit to Supreme Law.

EKSEKUSI TERHADAP OBJEK JAMINAN FIDUSIA PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR.18/PUU-XVII/2019.

Fiduciary is the transfer of ownership rights to an object on the basis of trust provided that the object whose ownership rights are transferred remains in the control of the owner of the object. In the implementation of fiduciary, the goods that are pledged remain in the power of the debtor. Fiduciary guarantees are security rights for movable objects, both tangible and intangible and immovable objects, especially buildings that cannot be encumbered with mortgage rights. The principle of the object of the fiduciary guarantee is the creditor's trust in the debtor. In the fiduciary guarantee law, if the debtor defaults, the object of the fiduciary guarantee will be handed over to the creditor for the purpose of fiduciary execution. The fiduciary guarantee law gives the creditor the right to carry out the execution of the fiduciary guarantee object, the existence of this power, the creditor can withdraw the fiduciary guarantee object by means of parate execution. However, with the Constitutional Court Decision Number 18/PUU-XVII/2019 regarding the application for judicial review of Article 15 section (2) and section (3), which requires a breach of contract agreement between the creditor and the debtor and the debtor's willingness to submit the object of collateral, has eliminated the rights of creditors and eliminated the principle of material rights. Based on these problems, the question in the research is how to execute the object of fiduciary security after the Constitutional Court Decision Number 18/PUU-XVII/2019 and what is the impact of the Constitutional Court Decision Number 18/PUU-XVII/2019. The legal research method in this paper is normative juridical which is reform oriented research. The conclusion in this study should be in the fiduciary guarantee certificate including the completeness of the default clause, to strengthen the evidence that the debtor has committed a breach of contract. If the debtor (fiduciary giver), after being agreed by the parties, is deemed to be in breach of contract (default), the execution of the object of the fiduciary guarantee can be carried out independently.

LEGAL PROTECTION FOR DEATH PENALTY CONVICTS WHO ARE NOT EXECUTED IMMEDIATELY AFTER THE PERMANENT LEGAL FORCE

The purpose of this research is to determine the concept of legal protection for death penalty convicts who are not executed immediately after permanent legal force in the future. This research is a normative legal research with the approach of Law, History, Comparison, Philosophy and Cases. The legal materials used are primary, secondary and tertiary with analytical techniques using perspective analysis. The results of this research indicate that at the Judicial Review stage, the Criminal Code Procedure must set a time limit for submitting a judicial review application since the decision has permanent legal force (inkracht van gewijsde). The execution of the judge’s decision that imposes the death penalty on the convict who submits the application for judicial review and clemency must be strictly regulated.

Reform Regulation of Novum in Criminal Judges in an Effort to Provide Legal Certainty

The research stems from Decision Number 224 PK/PID.SUS/2018 which grants the application for judicial review (hereinafter abbreviated as PK) by a suspected narcotics abuser with a novum (new evidence) in the form of previous judges' decisions. In this case, this study aims to conceptualize how the regulation of PK legal remedies in criminal cases should be. This research is a normative legal research, the approach used is a case approach, a comparative approach, and a conceptual approach, with a literature study research technique. After knowing the arguments for the admissibility of submitting a PK in the form of a District Court Decision, the author makes several comparisons with the Criminal Procedure Code (America and France), and concludes based on this comparison that the use of the basis for submitting a PK should be regulated clearly and firmly in the Criminal Procedure Code, because the two countries in its criminal procedural law it expressly states that the submission of a PK must be based on new facts and evidence which, if presented at the previous trial, has the potential to reduce or even abort the prosecution's charge

The Union in Court: Allister and others’ Application for Judicial Review [2021] NIQB 64

Case commentary on Allister and others’ Application for Judicial Review [2021] NIQB 64.

An Application for Judicial Review: The People v Attorney General & Energy Regulation Board [2020] HP 0575

An Application for Judicial Review: <i>The People v Attorney General &amp; Energy Regulation Board</i> [2020] HP 0575

An Empirical Study of the Frequency and Distribution of Judicial Review in Resolving Public Procurement Disputes Within the UK: Proposals for Legal and Policy Reform

Unlike other EU Member States, existing studies on public procurement challenges in UK local government lack empirical analysis. The Law Commission has identified this as an area for review. Little is known about the frequency and distribution of such challenges within the UK. Consequently, observations made on the number of procurement disputes actually leading to judicial review applications are speculative. This article, for the first time, generates new empirical data on the subject and makes reform recommendations. Using data elicited from nearly 400 local government bodies, the national and regional frequency and distribution of such challenges is illuminated for the first time. Glaring inability by Local Government bodies to retain and retrieve data pertaining to Local Government procurement was revealed by the study; the frequency and distribution of challenges was seen to vary widely across different UK regions; the number of challenges has risen significantly following 2009 law and policy reforms (rather than reduce); and the insights generated in the article will support the Law Commission’s call for further study of internal administrative review systems within public bodies so the connection between administrative justice and those seeking natural justice in procurement disputes is better understood. judicial review, local government, public procurement, freedom of information, policy reform.

Mavericks or misconstruction? A reply to Campbell and Allan

AbstractIn a jurisdiction without a codified constitution clearly demarcating the role of the courts, and given the centrality of the principle of parliamentary sovereignty to the United Kingdom's constitutional framework, criticism of the courts for overstepping the mark – particularly in politically contentious cases – is par for the course. In their 2019 article, Professors David Campbell and James Allan offer a criticism of the Supreme Court for what they describe as its surreptitious creation of judicial supremacy at the expense of parliamentary sovereignty. In support of their claim, the authors examine two particularly significant judgments: R (Miller and another) v. Secretary of State for Exiting the European Union and Re Northern Ireland Human Rights Commission's Application for Judicial Review. This reply discusses several problematic aspects of the authors’ critique of those judgments, demonstrating that, contrary to the authors’ claims, these cases do not provide evidence of a surreptitious attempt by the Supreme Court to expand its power.

The Limitations of the Right to be Heard in Disciplinary Proceedings against Public Servants in Malaysia: An Infringement of the Fundamental Liberties Under Article 5 and Article 8 of the Federal Constitution

Since 1976, despite the Privy Council’s decision in Najar Singh’s case, the right to be heard particularly on its expansion to the right of oral hearing in disciplinary proceedings against public servants in Malaysia has become an ongoing challenge. This is the outcome of the different approaches adopted by the courts in determining such right to the affected public servants. This article analysed the constitutional provisions and the judicial review approach with regards to the right to be heard of public servants in disciplinary proceedings as granted in Article 135(2) of the Federal Constitution. This article employed qualitative method by using content analysis. The findings indicated that first, the interpretation of the constitutional term “a reasonable opportunity of being heard” is vague. Next, the judicial review application is inconsistent and finally, the limitation of the right to be heard deprives the life and personal liberty of a person as envisaged in Article 5 and Article 8 of the Federal Constitution. Thus, the constitutional protection of “a reasonable opportunity of being heard” which falls under Article 135(2) in the case of dismissal and reduction of a public servant’s rank in Malaysia should be interpreted in the light of the fundamental liberties as guaranteed in Article 5 and Article 8 of the Federal Constitution. It is proposed that the oral hearing which is an essence to the principle of right to be heard be regulated in the disciplinary proceedings against public servants in Malaysia.

The UK Government’s Covid-19 Response and Article 2 of the ECHR (Title I Dignity; Right to Life, Charter of Fundamental Rights of the EU)

The purpose of this article is to assess the impact of the UK government’s response to the Covid-19 outbreak from a human rights perspective, particularly its apparent tension with Article 2 of the European Convention on Human Rights (ECHR) in relation to non-Covid-19 patients whose lives were put at risk by not being able to attend appointments and treatments for pre-existing conditions and illnesses. The UK has also rejected the application of the Charter of Fundamental Rights of the European Union with the European Union Withdrawal Act 2018, which will leave the population even more exposed to potential human rights violations. This seems to be a direct consequence of the narrative and slogan employed by the government: “Stay Home; Protect the NHS; Save Lives”. Other potentially threatened categories, the NHS staff and prisoners are also mentioned in the same context. The latter have already launched a judicial review application along the same lines: Article 2 of the ECHR and the due regard duty stemming from the Equality Act 2010. The NHS staff were directly at risk, and evidence was emerging almost on a daily basis that implied authorities’ responsibility for the shortage of personal protective equipment and testing kits. While there have been a number of discussions on other issues in relation to the lockdown and the strategy directly or indirectly impacting human rights, it appears that no discussion on the impact of the strategy for non-Covid-19 patients and other categories from a human rights perspective has taken place. This gap in analyses and literature merits the present analysis.

Beeharry S. v Sugar Industry Labour Welfare Fund &amp;amp; ORS Case Commentary

In the Republic of Mauritius, a judicial review is concerned with the reviewing of the decision-making process of an administrative body. This case was an application for judicial review of the decision and decision-making process of the Respondents in the appointment of the Co-Respondent as Deputy Commissioner rather than the Applicant. The application was based on the grounds that the decision taken by the administrative body was arbitrary, irrational, unfair, amounts to abuse of power and is grossly unreasonable in the circumstances. The Applicant averred that he is more academically qualified than the Co-Respondent and thereby deserved to be appointed as Deputy Commissioner. However, the Applicant failed to establish how his qualifications and seniority made him a suitable candidate for the appointment. Hence, amongst the other reasons, the application for judicial review was devoid of merit and was set aside accordingly. This case commentary will focus on the decision pertaining to seniority and qualifications as a criteria for promotion. This commentary is helpful for readers seeking to understand the judicial review process and the Supreme Court’s supervisory and discretionary powers in the application for judicial review. The commentary includes an analysis of the judgment based on precedents and discussions regarding the Court’s powers in the application for judicial review. Jurisdiction: Republic of Mauritius

Judicial Review of Refugee Determinations: More by Luck than Judgement

Judicial review decisions of refugee determinations are among the most important decisions that the Federal Circuit Court of Australia (FCCA) is asked to make. If errors in the exercise of executive power are not caught and corrected through judicial review, refugees may be sent back to countries where they may face torture, persecution or death. Refugee applicants, should therefore, rightly expect that the outcomes of their judicial review applications hinge on the strength and merits of their case and not hang in balance of which judge is assigned. This paper using a quantitative methodology presents data on the patterns of judicial decision making of the FCCA.

Briefly Noted

On September 2, 2019, the International Criminal Court (ICC) Appeals Chamber delivered its judgment in the Situation on the Registered Vessels of the Union of Comoros, the Hellenic Republic and the Kingdom of Cambodia case, Case No. ICC-01/13 OA 2, and rejected the appeal filed by the ICC Office of the Prosecutor (OTP) of the ICC Pre-Trial Chamber I's decision on the November 15, 2018 “Application for Judicial Review by the Government of the Union of Comoros.” As noted in the ICC's press release, “a referral was received by the Office of the Prosecutor from the authorities of the Union of the Comoros, a State Party to the Rome Statute, in relation to an attack on 31 May 2010 by the Israeli Defence Forces on the Humanitarian Aid Flotilla bound for the Gaza strip. On 6 November 2014, the Prosecutor issued her decision not to investigate the attack. On 16 July 2015, Pre-Trial Chamber I, by majority, requested the Prosecutor to reconsider the 6 November 2014 decision not to investigate the attack. Subsequently, on 29 November 2017 the Prosecutor filed her decision, which she considered to be final, reaffirming her previous decision not to investigate the attack. On 15 November 2018, Pre-Trial Chamber I directed the Prosecutor to reconsider her decision of 6 November 2014 not to investigate the attack in light of the specific directions of the Pre-Trial Chamber's 16 July 2015 decision. The Prosecutor then appealed this decision.” The Appeals Chamber confirmed the Pre-Trial Chamber's decision, directing that the OTP must reconsider its decision regarding the Comoros referral by December 2, 2019. The Appeals Chamber found that the Pre-Trial Chamber “did not err in reviewing whether a decision of a Prosecutor that she considered to be ‘final’ subsequently to a first request for reconsideration does actually amount … to a proper ‘final decision.’” The Appeals Chamber did maintain that the “ultimate decision” regarding whether or not to initiate an investigation remains with the OTP.

Separatist Creditors vs Preferred Creditors Rights in the Bankruptcy Case Based on the Decision of Constitutional Court of 2013

Workers are preferred creditors whose payment must take precedence in the bankruptcy of the company. Problems in practice occur in the company's assets as collateral for debt to separatist creditors so that workers' rights are ruled out. Therefore, workers submit applications for judicial review of the Bankruptcy Law and Labor Law. This study is normative research using primary legal materials, namely laws and case study decisions that are analysed qualitatively. The results of the study and discussion determined that the Bankruptcy Law and the Labor Law regulate the same as the legal status of workers as preferred creditors who are entitled to prioritize payment in the distribution of bankrupt assets strengthened by the results of a judicial review in Decision of the Constitutional Court Number 67/PUU-XI/2013 The right of workers to wages is prioritized and calculated from collateral objects which are the rights of separatist creditors. For this reason, curators with authority must share the right of separatist creditors and preferred creditors with the principle of balance and justice so that all the assets of a bankrupt company can pay off the debts of its creditors.