Judicial Review Cases Research Articles

The Federal Case for Judicial Review

Abstract In ‘The Core of the Case Against Judicial Review’, Jeremy Waldron reset the terms of the debate over judicial review, concluding that a legislature outperformed a court as the institution best suited for resolving rights disagreements. Waldron’s arguments have had influence in both theory and practice, as even now, scholars and politicians in the United Kingdom (UK) draw on his work in debates over codifying the British constitution. But Waldron’s project is grounded in an unstated assumption—his political unit is a unitary nation state. Federation fundamentally challenges his approach and flips his conclusion on its head. This Article presents the “federal” case for judicial review and contends that, in a federation, it is the federal apex court that is superior to the federal legislature for settling disagreements over rights.

Legitimacy - not Justice - and the Case for Judicial Review

Legitimacy - not Justice - and the Case for Judicial Review

Sex and the Office for National Statistics: A Case Study in Policy Capture

AbstractOn 17 March 2021, just four days before the England and Wales census date, the Office for National Statistics (ONS) conceded in a judicial review case. The case concerned the meaning of the sex question in the census, and the guidance to accompany this question. How did the ONS end up in court defending its guidance on a question which most people would deem self‐explanatory? This article explains the legislative and political context around gender recognition, and the consequences for data collection. Drawing on my own experiences, I explore the politicisation of the definition of sex, and argue that the ONS gave undue weight to lobby groups with a particular viewpoint on sex and gender identity.

Prospek Penjatuhan Putusan Provisi dalam Perkara Pengujian Undang-Undang

Provisional petition is not common in judicial review cases. This paper seeks to find the basis for submitting a provisional petition and the pattern of ruling on the provisional petition. The results showed that there were three things that became the basis for the petition for provisions, namely: (i) there were allegations of criminal acts in the formation of the law that was petitioned for review; (ii) protecting the constitutional rights which are seriously threatened and cannot be restored in the final judgment; and (iii) the urgent need for time to obtain a judge’s decision before the election, especially with regard to the right to vote and be elected. There were three pattern of rendering decisions on provisional petition, namely (i) dropped when the case examination process is ongoing and stated in writing before making the final decision; (ii) pronounced orally in court when the case examination process is ongoing and then reaffirmed in writing in the final decision; and (iii) decided simultaneously with the subject matter of the petition in the final judgment.

The Need for Procedural Rigour in Judicial Review Cases

I turn finally to the question of procedural rigour in public law litigation. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of p...

ПЕРЕСМОТР ДЕЛ ПО ВНОВЬ ОТКРЫВШИМСЯ И НОВЫМ ОБСТОЯТЕЛЬСТВАМ: НЕВЫГОДНЫЕ ОТЛИЧИЯ УГОЛОВНОГО ПРОЦЕССА

The article deals with the comparative analysis of the procedure and grounds for reviewing court cases under new and newly discovered circumstances in criminal and arbitration, civil and administrative proceedings. The author proceeds from the idea of common fundamental beginnings of justice in general, and therefore, all types of judicial activities - including an extraordinary review of judicial decisions, which have entered into legal force. The branch specifics of specific procedural institutions should have a special explanation based on the specifics of the branch itself. The author thinks that there is no key basis for reviewing the case on the newly discovered circumstances in the criminal trial and attempts to replace it with one of the new circumstances. In this part, the current criminal procedure law differs unfavourably from the Soviet Criminal Procedure Code (CPC) of the RSFSR of 1960 - among the newly discovered circumstances, there are no those that could indicate a miscarriage of justice made out of direct connection with someone's criminal actions. In the current CPC of the Russian Federation, the list of newly discovered circumstances is closed, and the list of new circumstances that entail the review of the court decisions is, on the contrary, open. Examples of academic papers and administrative enactments justifying such a replacement are given. The author gives his arguments against it and proposes to change the list of grounds for revision, referring to the regulation in other procedural branches, historical and foreign experience. A significant procedural difference of the considered type of extraordinary review of cases in criminal proceedings from other types of proceedings is found. It is the need for applicants to request a review from the prosecutor, not from the court. The greatest objection is the non-alternative procedure: the prosecutor is a participant in the criminal proceedings on the part of the prosecution, he is responsible for the undoubted proof of the charge, which is the basis of the sentence, the abolition of which is requested by another interested person. The negative impact of the prosecutor's mediation between the complainant and the court on access to justice and its quality is argued. It is pointed out that there is no need for prosecutorial checks to resolve the issue of judicial review of the case. The analysis of judicial statistics in different branches of justice shows that criminal proceedings differ sharply by the negligible number of judicial review cases due to newly discovered and new circumstances. The article calls into question the ability to explain this fact by a higher quality of sentences in criminal cases in comparison with other court decisions in other court cases.

Enforcing Nonjusticiable Rights In Indonesia

A debate over which branch of government is the most appropriate institution to deal with economic and social rights is far from ended. Is it the legislature which is democratically elected or the unelected Court that should determine the enforcement of economic and social rights? Problems pertaining to the lack of legitimacy and competence often come up when the Court is involved in determining economic and social rights. These problems arise because a court is not democratically elected and is not equipped with necessary tools to deal with such a complex issue in economic and social rights. However, others believe that the Court’s involvement in determining economic and social rights can strengthen democracy since the Court may enforce matter that is not sufficiently addressed by the lawmaker. This paper will address the above issue in context of Indonesia. Should the Court involve in protecting economic and social rights? If so, how far the Court can go to determine economic and social rights? This paper acknowledges that economic and social rights are a broad and complex topic. Therefore, this paper limits the discussion by analyzing four selected judicial rulings which have significant impact in the protection of economic and social rights in Indonesia i.e. the judicial review cases on Electricity Law, Water Resources Law, National Education System Law and National Budget Law. This paper argues that it is necessary for the Court to involve in determining economic and social rights, especially when the lawmaker does not sufficiently address issues related to economic and social rights in its legislative product. The Court may fill the gaps in the protection of Economic and Social rights. The Court roles in this context, however, potentially encroach the authority of other branches of governments i.e. the executive and the legislative. Therefore, the Court roles should be carefully and strategically conducted so that it does not infringe the jurisdiction of the government and the lawmakers.

The Urgency of Amendment to Law Number 32 of 2002 concerning Broadcasting as the Legal Umbrella for OTT Services

Digitalization is a global phenomenon that has an impact on changing social conditions. The Broadcasting Bill itself is canceled to be a priority in the 2020 Priority National Legislation Program even though there is a lot of material contained in the law itself needs to be updated immediately according to the times. Therefore, the function of conducting this research is to seek answers in terms of legal certainty regarding the development of legal relations with technological developments in the era of digitalization and constitutional interpretation in the digitalization era that supports sustainable economic development and is in accordance with the Indonesian national identity. This study uses a quantitative juridical analysis method, which is in the form of in-depth research on legal materials and data as usual as normative law. Furthermore, the results of the analysis will be linked to the problems in this study to produce an objective assessment to answer the problems in the research. The results of the research show that the OTT services cannot be in the scope of Law Number 32 of 2002 concerning Broadcasting, therefore the Constitutional Court must play a strategic role in carrying out rapid and precise reforms so that statutory norms can be consistent with the development of society, especially due to developments. Digital technology. The most ideal and relevant constitutional interpretation of the Judicial Review case against this law would be: Consensualism, Prudential and Futuristic with an emphasis on legal certainty for Over the Top (OTT) services and on socio-economic impacts significant impact on the general welfare. It is necessary to revise the Broadcasting Law with the intention of maintaining national integration to establish a national broadcasting system that guarantees the creation of a just, equitable, and balanced national information order in order to realize social justice for all Indonesian people.

ARGUIÇÃO DE DESCUMPRIMENTO DE PRECEITO FUNDAMENTAL NA PERSPECTIVA DO CONCEITO FUNDAMENTAL DE AÇÃO

O presente artigo analisa o conceito fundamental de ação com o objetivo de identificar o real sentido constitucional da ADPF, e em cotejo com a própria norma da Constituição, haja vista sua avaliação doutrinária quase sempre ser feita apenas com base na Lei 9.882/99, que é vista como criadora de uma espécie de controle concentrado de constitucionalidade. Identifica uma outra forma de bloqueio legislativo, além dos apontados por Rosalind Dixon na presente Revista, em sua análise sobre o “argumento central da forma fraca do controle de constitucionalidade”. O estudo sustenta que a norma constitucional da ADPF trouxe, em verdade, uma importante e inovadora garantia fundamental, de forma a enriquecer a jurisdição constitucional como instrumento de democracia participativa, mas que foi bloqueada pela sua regulamentação legal, exigindo ou uma alteração da lei ou o exercício da forma forte de controle de constitucionalidade por parte da Corte constitucional no sentido do resgate de sentido normativo.

LEGAL STRENGTH OF FIDUSIA POST-DECISION COURT DECISION NUMBER 18/PUU-XVII-2019 ABOUT FIDUSIAN GUARANTEE

Not long ago, the Constitutional Court issued a decision in a judicial review case on Law Number 42 of 1999 concerning Fiduciary Guarantee. The articles petitioned for review in the case are Article 15 paragraph (2) and (3) of the Fiduciary Guarantee Law which regulates the executorial power of fiduciary certificates and execution parates. This paper discusses the legal strength of fiduciary guarantees after the Constitutional Court decision Number 18 / PUU-XVII-2019 concerning Fiduciary Guarantee. The research method is normative legal research, especially research using the criteria for the level of legal synchronization, the researcher collects data consisting of secondary data in the form of primary legal materials, secondary legal materials and tertiary legal materials. The data collection technique is literature review. The data analysis was done qualitatively and draw conclusions from the writer using deductive thinking method. The conclusion is that the Constitutional Court Decision Number 18 of 2019 will have little or more implications for the auction business process conducted by KPKNL. This is because Article 15 paragraph (2) and paragraph (3) of the Fiduciary Law, according to the Constitutional Court Decision Number 18 of 2019, are fundamental norms. Ideally, the execution of fiduciary collateral is through an auction which can only be carried out by KPKNL. The author's suggestion needs supervision by the fiduciary recipient of fiduciary collateral controlled by the debtor. So that the weaknesses in the implementation of legal protection for creditors in a peace agreement are caused by, among others, regulations that give creditors a weak position.

Legal Examination of the Constitutional Court Number 28/PUU-XI/2013 Concerning the Case of Judicial Review of Law Number 17 of 2012 Concerning Cooperatives

This study aims to understand the legal review on Decision of the Constitutional Court No. 28/PUU-XI/2013 on the review of Law No. 17 of 2012 on Cooperatives against The 1945 Constitution. The benefits of this research are socialization and provide legal awareness about cooperatives activities in Indonesia. This research uses a normative approach that focuses on studying the legal and regulatory norms associated with the object of the problem. The technical analysis used in this study is the Hermeneutic and Interpretation analysis methods. The results of the study indicate that Phrase “natural person” in the cooperatives sense was based on Article 1 point 1 of Law No. 17 of 2012 is against Article 33 section (1) of The 1945 Constitution because that definition leads to individualism. Furthermore, although the Petitioner's petition is only regarding certain articles it contains substantial norm content, it will cause other articles in Law No. 17 of 2012 has no binding legal force. Therefore the Petitioner's petition must be declared in accordance with the law for all contents of Law No. 17 of 2012. As for the sake of legal certainty, Law No. 25 of 1992 valid for a while awaiting the establishment of a new Law.

Metamorphoses of an Adversarial Nature of Criminal Proceedings in Cases of Judicial Review

An adversarial nature of any judicial proceedings, which is characteristic of justice and corresponds to its nature, is revealed in criminal proceedings not only in criminal cases, but also in so called cases of judicial review exercised during pre-trial proceedings. In the present paper the features of adversarial construction of judicial review proceedings in the Russian criminal process are investigated in the context of the purpose and subject of judicial review at pre-trial stages. The author has analyzed the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of the procedural parties in cases of judicial review, as well as the peculiarities of initiating the judicial review proceedings and distribution of the burden of proof between the parties; reveals the transformation of the procedural roles of the main participants of the adversarial proceedings when the disputed issue is transfered from the main proceedings in the criminal case for consideration in the procedure of judicial review within the framework of separate proceedings. The paper also elucidates such features characteristic for certain forms of judicial review as involvement of third parties having their own interest in the judicial review case and restriction of participation in the court session of the interested party. The paper focuses on the problem of ambiguous (from the standpoint of the principle of adversariality) procedural status of the prosecutor in judicial and review proceedings in which independent parties are the investigator and (or) the head of the investigative body. Alternative options for elimination of the problem discussed above are proposed. It is concluded that in the course of normative regulation of judicial review procedures and law enforcement, it is necessary to take into account the specifics of cases of judicial review and the originality of manifestation of adversarial foundation in such cases.

A Case for Judicial Review of Legislative Process in India?

This paper explores the possibility of judicial review of legislative process (“JRLP”) in India. It draws on scholarship from other jurisdictions to outline a case in favour of JRLP in light of India’s particular context. It begins by critically analyzing the functioning of India’s Parliament, where we identify several fundamental weaknesses in the legislative process and demonstrate with examples how they are exploited to bypass debate and deliberation. The paper then considers several arguments advanced in favour of judicial review as a possible solution to weaknesses in the legislative process. In this regard, the paper distinguishes between two kinds of judicial review, referred to as “direct” and “indirect” JRLP. The paper considers the plausibility of employing direct and indirect JRLP in light of India’s constitutional provisions and existing doctrinal position, demonstrating that neither forms are necessarily barred, and have been employed in part. Finally, the paper outlines the case for and against the use of direct and indirect JRLP in the Indian context, and concludes by suggesting that these forms of judicial review may be a normatively desirable approach to remedying some of the fundamental weaknesses in India’s legislative process.

Litigants in Person in Judicial Review Cases: Lessons from the Wider Legal Context and Ways to Improve the Process for Litigants in Person

1. The growing number of litigants in person (LiPs) accessing the English and Welsh legal system has been well documented over recent years. Concerns have been raised about the impact this has on c...

For a Law of Public Contract Per Se: An Intervention from Liberal Contract Theory

Abstract Judges in judicial review cases in New Zealand and the UK currently begin with the presumption that the existence of a contract means that the matter should be treated as a private law one—at least in the absence of a special ‘public element’. This article argues that all contracts with government entities should be treated as presumptively public. Such a position can be justified by recourse to liberal contract theory. Arthur Ripstein’s Kantian theory identifies the critical role of the state in securing the background conditions for the operation of private law. These are unsettled when a government entity is one of the parties to a contract.

Breaking the Silence: Media Access to Prisoners in New Zealand

In recent years there have been two high profile judicial review cases of the Department of Corrections’ decision to deny a journalist an interview with a prisoner in Watson v Chief Executive of the Department of Corrections [2016] NZHC 1996 and Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477. This paper examines the law relating to media access to prisons in New Zealand and concludes that while the courts have adequately protected prisoners’ freedom of expression, the Department of Corrections has consistently adopted an overly restrictive approach.

The republican core of the case for judicial review

This article makes the case for judicial review based on the idea of freedom as non-domination. It is a democratic case for the institution, rooted in Philip Pettit’s republican account of democracy as “equally shared popular control.” It is also a legitimacy-based and non-epistemic case—it does not rely on Rawlsian/Dworkinian ideas around the special wisdom or the special virtue of judges. The article thus accounts for the main concerns of political constitutionalists. In fact, building as it does on Richard Bellamy’s insights in particular, it is itself a political constitutionalist case for judicial review. It diverges from Bellamy, however, in its conclusions about judicial power. This divergence emerges from a particular understanding of how common goods might emerge over time in a democratic society. Following Pettit, the article emphasizes a long-term perspective on that question, and suggests fluid, iterative processes toward that end—processes that account for and embrace disagreement among citizens. The article holds that non-electoral contestatory institutions play a necessary role in such processes. And it holds that there are good reasons why judicial review—and, in principle, judicial supremacy—might be understood as one such institution. These reasons are good in part because they are non-epistemic: they do not conflict with the fact of reasonable disagreement on rights questions.

The republican core of the case for judicial review: A reply to Tom Hickey. Why political constitutionalism requires equality of power and weak review

Political Constitutionalism (hereinafter PC)1 deployed the version of republican theory developed by Philip Pettit to argue against not only the liberal democratic case for legal constitutionalism and judicial review put forward by John Rawls and Ronald Dworkin but also Pettit’s own purportedly neo-republican version of a similar argument,2 along with those of other writers who adopted neo-republican arguments of a slightly different kind, such as Jurgen Habermas, Cass Sunstein, and Frank Michelman. PC contended that for all citizens to be equal under the law in a manner consistent with freedom as non-domination, the law and legal system had to be under their equal influence and control in ways that could only be achieved through an appropriate form of democracy. This form of democracy would need to possess certain constitutional qualities, such as the impartial and equitable treatment of all interested parties. In particular, it required the institutionalization of a balance of power of a kind that encouraged both citizens and their representatives to “hear the other side,” and so be moved to decide collective policies in ways that addressed their “commonly avowable interests” and thereby treated all citizens with equal concern and respect. I suggested that parliamentary representative democracies, involving free and fair elections between competing parties and employing a system of majoritarian voting, had many of the requisite features.

The republican core of the case for judicial review: A rejoinder to Richard Bellamy

The case I make for judicial review avoids what I, among others, see as the basic flaw in most of the justifications that have been offered previously. It does not rely on the notion that judges are more enlightened than legislators in respect to the resolution of rights questions. It does not hold that judicial insight is such that, with judicial review, outcomes are more likely to treat individuals with equal concern and respect. This means that the “fact of reasonable disagreement on rights” objection cannot be leveled at my case in the way that it can be leveled at legal constitutionalist cases. The republican understanding of democracy upon which I build my case not only accounts for this fact of disagreement, it relies quite heavily on it. In turn, my case relies on that fact of disagreement.

Democratic rights protection: the case for weak judicial review implicit in the democratic critique of judicial review – RETRACTED

Democratic critique of judicial review – A case for judicial review based on democracy – The unsuccessful case against weak judicial review based on democracy – The distinctive democratic qualities of courts – Contestability of political decisions – The argument for weak judicial review implicit in the democratic critique