Judicial Intervention Research Articles

Comparative Exposition of Judicial Interventionism in the Enforcement of the Healthcare Right in Nigeria and India

The significance of health to national life has made successive governments in Nigeria and India design certain fundamental policies to regulate, control and guide healthcare service delivery. Since the incorporation of fundamental human rights into the two countries’ constitutions, the healthcare right has appeared as one of the fundamental objectives and directive principles of state policy. This requires governments to put in place policies geared towards implementing these obligations. However, regarding economic and social rights, the Nigerian judiciary has generally played a restrictive or a rather passive role in their enforcement. In contrast, Indian courts have employed a much more pragmatic approach to implementing economic and social rights. The problem with these rights is that judicial intervention resulting from a violation of the healthcare right remains a challenge because section 6(6)(c) and article 35 of the Nigerian and Indian constitutions, respectively, make economic and social rights non-justiciable. The article makes a comparative analysis of the practice in Indian and other jurisdictions in order to justify the possibility of embracing the enforceability of the rights, having regard to the link between economic and social rights and civil and political rights in Nigeria. By drawing on judicial synergy, this article suggests a legislative intercession to bring health rights within the enforceable rights by taking advantage of section 13 and item 60 of the Nigerian Exclusive Legislative List. In addition, the author recommends that the relevant international conventions signed by the country should be domesticated.

Avaliação de tecnologias em saúde: tensões metodológicas durante a pandemia de Covid-19

RESUMO A Covid-19 é uma ameaça global que atrai pesquisadores de todas as áreas a fim de conhecer a história natural da doença e seus parâmetros epidemiológicos. O desenvolvimento tecnológico de vacinas, testes para diagnóstico e alvos terapêuticos tem mobilizado grande quantidade de recursos em curto tempo. A Avaliação de Tecnologias em Saúde (ATS), baseada em uma análise sistemática das propriedades, efeitos e/ou impactos das tecnologias em Saúde através de métodos e instrumentos validados internacionalmente para avaliar a qualidade e rigor metodológico dos estudos que demonstrem eficácia, efetividade e segurança, está sofrendo pressões, sem precedentes, devido à pandemia. Este artigo traz uma reflexão sobre a autorização emergencial do uso de tratamentos e testes diagnósticos que conflita com os preceitos da ATS. Apresentaremos também uma avaliação das tecnologias não farmacológicas de contenção da doença e seus impactos na economia doméstica e internacional, bem como as intervenções judiciais que impactam as decisões dos gestores no contexto excepcional da pandemia de Covid-19.

An Inquiry into the Limits of Judicial Intervention in the Impeachment Process of Governors in Kenya

Article 181(2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a county governor. This has been realised through the County Government Act, Section 33. Section 33 recognises the County Assembly and the Senate as the bodies responsible for this process. However, the County Government Act fails to address at what point the courts can intervene in the impeachment process of governors. This is often a problematic issue as the doctrine of separation of powers requires each arm of government to perform their functions independently. Nonetheless, Kenyan courts have the duty to protect aggrieved parties whenever their rights are threatened. However, the point at which they can intervene is not stated under any law and this creates confusion between the role of courts of law in the impeachment process, on the one hand, and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. This paper, therefore, seeks to address this confusion through a critique of the Wambora case, a case that was appealed up to the Supreme Court. The paper also suggests a complimentary system whereby the Senate, County Assembly and the courts can work in harmony, and, do away with the confusion.

Jurisdiction and admissibility: a case study

Abstract Arbitrators cannot decide cases if they do not have jurisdiction. For this reason, a challenge to jurisdiction may prompt judicial intervention. Most national courts, however, limit their intervention to question of jurisdiction and do not interfere in the arbitral process if the objection is merely one of admissibility. The distinction between jurisdiction and admissibility is a valuable tool for differentiating when judicial intervention is appropriate and when it is not. The problem is that some national courts generally conflate the concept of jurisdiction, which may properly be the basis for such intervention, with admissibility issues, which should be referred to the tribunal to decide. As a case study, this article focuses on the conflation by Nigerian courts leading to an overly expansive allocation of authority to courts to make initial rulings, which in turn is abused by parties and undermines the efficiency of arbitration in Nigeria. To address the problem, this article proposes that Nigerian courts adopt the distinction between jurisdictional and admissibility objections in international arbitration. This distinction, while not perfect, can promote efficacy in arbitration seated in Nigeria. Adopting the distinction between admissibility and jurisdiction will enable Nigerian courts to exercise greater restraint in cases that do not go to the root of courts’ authority and promote outcomes that are more coherent and more consistent with their obligations under the New York Convention and Model Law.

Re‐Evaluating ‘Best Interests’ in the Wake of Raqeeb v Barts NHS Foundation Trust & Anors

AbstractIn Raqeeb v Barts NHS Foundation Trust, the latest of a number of cases concerning whether a child can travel abroad for treatment that doctors in the UK do not consider to be in their best interests, the High Court held that the hospital had acted unlawfully by failing to consider the child's rights under EU law when refusing to allow her to travel. Although this derogation could be justified on public policy grounds, as such treatment was, on the facts, in her best interests, no further interference with her rights was justified. In making this finding, the court recognised the ‘stress’ that such a case placed on the best interests test, lending weight to the argument for moving instead to a risk of significant harm threshold for judicial intervention in parental decisions, which better accounts for legitimate differences of value and strikes a better balance under Article 8 ECHR.

SOBRE A LEGITIMIDADE DEMOCRÁTICA DA INTERVENÇÃO JUDICIAL NO PROCESSO LEGISLATIVO: UMA CRÍTICA AO CONTROLE PREVENTIVO DE CONSTITUCIONALIDADE PELO STF

This article aims to discuss the democratic legitimacy of the preventive judicial review of the legislative process, as practiced by the jurisprudence of the Supreme Court in Brazil. We initially present the debate between Ronald Dworkin and Jeremy Waldron to illustrate some of the problems regarding the legitimacy of judicial review. Then we analyze the construction of the preventive judicial control of constitutionality in Brazil by the Federal Supreme Court, highlighting recent cases in which the Court, monocratically, interfered in the legislative process by disagreement with the content of parliamentary deliberations. Finally, we criticize the legitimacy of judicial intervention in the legislative process.

Court Interpreters and the Political Economy of Bail in Three Arraignment Courts

Criminal courts in the United States engage defendants with Limited English Proficiency on a regular basis. However, we know little about how court‐appointed interpreters shape case‐level routines and dispositions, nor how these interpreters navigate their immediate courtroom environment. We draw on observations of bail hearings (N = 647) conducted in 2015–16 in three arraignment courts in New York and New Jersey to map the practice and consequences of language interpretation. More specifically, we examine whether the use of an interpreter relates to indicators of judicial treatment and case disposition by bail type/amount, and explore more broadly how the presence of interpreters shapes the casework of other courtroom actors. Results from multivariate regression models indicate that cases with interpreters are associated with a more limited judicial review, a lower likelihood of unconditional release, and higher cash bonds. We discuss these findings in terms of evolving mechanisms of social control and the criminalization of disadvantaged populations.

Interwencja służb środowiska lokalnego formą pomocy rodzinie

Legal regulations regarding the performance of family functions and parental responsibility find expression in many norms included in the Family and Guardianship Code. The article reviews the forms of institutional assistance that are included in the Polish legal system, taking into account the importance of the family for the development of all its members, especially minor children. In case of problems in the area of parental responsibility, state authorities undertake voluntary (pre-trial) and forced (judicial) interventions. The subject scope of assistance provided to the family, depending on the type of problems and the degree of dysfunctionality, by state institutions based on normative acts of various levels was also analyzed.

Taking Process-Based Theory Seriously: Could ‘Discrete and Insular Minorities’ Be Protected Under the Australian Constitution?

The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the ordinary political processes established by the Constitution rather than adjudicating on its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the channels of political change, it has not engaged with the protection of minority rights or equality concerns more broadly which were a key element of process-based theory. In this article, I argue that the judicial protection of minority rights is a necessary and desirable corollary of the constitutional entrenchment of representative government in the Australian Constitution. I explore how this could arise through either a freestanding guarantee of equality or in a weaker form by inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High Court’s current interpretive approach may not support a broad protection of equality, its process-based protection of representative government provides an available means to recognise minority rights under the Australian Constitution.

Judicial Intervention in Facilitating Legal Recognition (and Regulation) of Muslim Family Law in Muslim-Minority Countries


 
 
 In 2018, a groundbreaking judgment was delivered by a full bench of the Western Cape High Court in the matter of the Women’s Legal Centre Trust v. President of South Africa. This case followed a long line of judgments spanning some twenty-one years in which the South African judiciary afforded limited recognition to aspects of Muslim marriages. In this decision, the Western Cape High Court ordered the South African State to prepare, initiate, enact, and implement legislation that provides for the recognition and regulation of the consequences of Muslim marriages within twelve months of the date of judgment. In this Article, the author examines the following questions: Why has the South African State not yet recognized Muslim marriages despite repeated calls to do so by South African Muslim communities? Why has it taken a court to instruct the South African State to enact legislation to recognize Muslim marriages? What, if any, are the human rights implications of the judgment? And what difference, if any, will the judgment make in the lives of Muslims? The author argues that, despite the groundbreaking nature of the judgment, it does not go far enough to ensure sufficient protection for the human rights of Muslim women and that the manner in which the Western Cape High Court’s order is implemented could perpetuate the undermining of Muslim women’s human rights.
 
 

FAMÍLIAS DE CLASSES POPULARES, DESIGUALDADE SOCIAL E LITÍGIOS QUE ENVOLVEM CRIANÇAS: GARANTIA OU VIOLAÇÃO DE DIREITOS?

Este artigo se propõe a apresentar os significados atribuídos pelos entrevistados, profissionais do Direito atuantes no Direito das Famílias e da Criança, acerca do papel desempenhado pela família nos litígios que envolvem crianças. Os profissionais entrevistados frequentemente apontaram o “fracasso” da família como motivador da intervenção judicial na vida das crianças, do excesso de exposição, da tensão provocada e da potencial formação de trauma nas crianças atendidas pelo Judiciário. Nessas entrevistas, busca-se identificar as contradições que cercam esse papel, que ora se mostra como garantia de direitos e ora como violador. Tais contradições expressam a severa distância que ainda separa a criança da concretização efetiva de políticas públicas que garantam plenamente seus direitos, sobretudo no que tange as crianças oriundas das classes populares atingidas pela desigualdade social. A análise e o alicerce teórico deste texto se norteiam pela Psicologia Sócio-Histórica de Vigotski, uma perspectiva crítica que admite a contradição e aspira a uma transformação das relações sociais.
 Palavras-chave: psicologia sócio-histórica; direitos da criança; dialética exclusão/inclusão social; sistema de garantias de direitos; famílias de classes populares.

JUDICIALIZAÇÃO DA SAÚDE E DIREITOS FUNDAMENTAIS: CRITÉRIOS JUDICIAIS PARA CONCESSÃO DE MEDICAMENTOS À LUZ DOS TRIBUNAIS SUPERIORES

A questão da saúde revela-se pelo primado da dignidade da pessoa humana, fundamento constitucional a partir do qual se assentam todas as relações na ordem jurídica social. Nota-se, no Brasil, um incremento da intervenção do Poder Judiciário para assegurar a tutela dos direitos individuais nessa questão, especialmente para a concessão de medicamentos imprescindíveis a pacientes em situações concretas de extrema necessidade ou que apresentam sua vida em risco. Esse mecanismo de intervenção judicial tem apresentado desgaste, diante da falta de patamares jurídicos concretos e estáveis. A constante tensão havida a partir do desequilíbrio criado pela não uniformidade em tais decisões judiciais tem levado, ultimamente, os Tribunais a mudarem tal cenário, com o estabelecimento de novas premissas para que sejam concedidas tutelas que permitam o acesso das pessoas a medicamentos para seus tratamentos. A partir da metodologia analítica dedutiva, com amplo apoio bibliográfico, o objetivo do presente artigo é analisar criticamente a sedimentação da atuação dos tribunais na concessão de medicamentos, tendo por base os direitos e garantias fundamentais.

Indigenising Animal Rights Beyond Judicial Rhetoric

This paper intends to provide a detailed overview of how modern Indian jurisprudence, reflected not only by the courts but also parliamentary legislation, imagines the domain of animal laws in India. In a field riddled by inconsistencies, one particularly vexed factor remains, of course, the status of the cow, not only as an animal but also as a broader cultural and political symbol. Navigating these dichotomies conceptually, therefore, is crucial to unravelling the Indian debate on animal law. In our view, the Indian position today represents a form of ‘compassionate escapism’ which allows judges to address specific cases of animal cruelty before them, yet at each stage sidestepping important constitutional questions including the meaning of ‘right to life’ in the animal context, its reconciliation with the PCA 1960 and the socio-cultural significance of animals in India. However, with every such judicial intervention, the courts have created more questions than they have resolved. Given the fairly untested waters of constructing an Indian contextualised animal law jurisprudence, this paper is an attempt not to substantively propose but to roadmap the most crucial issues which require debate and intervention.

Judicial conduct and prevarication in contexts of ecuadorian justice

The purpose of this article is to present an explanatory overview of the judicial conduct and the Prevaricate in the justice of Ecuador, as well as to address the legal and judicial treatment that is exposed at the level of criminal law through the Organic Integral Criminal Code. It is about reflecting the importance of the judicial conduct of magistrates, judges and other public administration servers. In particular, it was about what represents ethics, values and moral norms that must be consubstantiated with the honesty of the judges and other members of the legal society of Ecuador. A brief historical account is made of what the crime of prevarication, its laws and punishments has represented for Ecuadorian justice as a result of the commission of this offense.

Efficacy, impact and English legal history

Theorists of law and of social policy distinguish between the efficacy and the impact of laws and legislation. Efficacy concerns the achievement of the effects intended by law-makers. Impact refers to the actual consequences. At times, the two diverge. Sometimes, it is only after a lengthy period that the impact is appreciated. The impact sometimes requires intervention by legislators or judges acting purposively in order to correct unforeseen or unfortunate consequences. The extent of judicial intervention is not always clear from the surviving records. This article argues that an awareness of the possibility of such occurrence is essential if legal history is to present the whole truth concerning legal developments.

Intricacies of Significant Imbalance as the Cornerstone of Protection against Unfair Terms in Consumer Contracts under EU Law

Significant imbalance in the rights and obligations of the parties to a consumer contract term is, together with good faith, a fundamental pillar of substantive protection against unfair terms. It is the primary tool provided by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts with a view to mitigating differences in bargaining power between professional traders and consumer on the ever-expanding capitalistic market within the EU. The paper comprehensively reviews the meaning of the “significant imbalance” element by reference to a cross-section of judgments handed by the CJEU and Polish courts. Generally, albeit with a few notable exceptions, the former court has engaged in a subjective-objective exercise aimed at discovering what the balance of rights and obligations would have been between the parties in the particular dispute at hand had it not been for the purportedly unfair clause. Besides that, the requirement has been utilized to impose ad bolster a host of information duties levied on traders so that protection is extended to cases where the consumer is unaware of their rights or are deterred from enforcing them due to procedural obstacles or prohibitive costs of judicial or administrative proceedings. The requirement of significant balance, rooted in the idea that the disproportion of market power between the parties to a disputed term necessitates government or judicial intervention to achieve or restore contractual equilibrium, is shown from a plethora of angles: its ideological foundations, practical connotations, its emphasis on consumer vulnerability and approach to economic power. Assistance and inspiration re gleaned from Polish jurisprudence where numerous questions either unanswered by the CJEU or left to the consideration of national courts, particularly the relation between reasonableness, on the one hand, and significant imbalance and good faith on the other, as well as between significant imbalance and good faith, have been tackled.

Striking a Balance Between Assistance and Interventionism: The Role of Courts in Rwanda-Seated Arbitrations

The African Arbitration Association was established in 2018 and its headquarters is in Kigali, Rwanda. This choice of location signals that Rwanda has made meaningful strides in improving its arbitration environment, at least in the opinion of African states. Many questions will arise as to whether Rwanda-seated arbitrations do indeed rest in a legally friendly environment, and receive optimum support of courts which act to foster the efficiency and effectiveness of arbitrations. The interplay between courts and arbitral tribunals in dealing with Rwanda-seated arbitrations is the subject of this article. Party autonomy, which broadly underscores the freedom of the parties to decide how their disputes should be resolved, is one of the most important principles in arbitration. This principle naturally translates to the autonomy of the arbitral process and notably the freedom of this process from undue judicial interference. While courts are indispensable in the success equation of the arbitral process, too much judicial intervention in matters of arbitration may have serious repercussions on the efficiency of arbitration. This article examines the autonomy of the arbitral process under the law and practice of arbitration in Rwanda. In doing so, the article discusses different practices in the leading places of arbitration on the interplay between courts and arbitral tribunals in dealing with matters of arbitration and compares these with the corresponding law and practice governing Rwanda-seated arbitrations. It concludes that, with the pro-arbitration stance often demonstrated by the courts in Rwanda and their sparing involvement in the arbitral process, the arbitration environment is as friendly as it is in most other states that are signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958). Rwanda-Seated Arbitrations, Mandatory Provisions, Party Autonomy, Jurisdictional Challenges, Kompetenz-Kompetenz, Negative Effect of Kompetenz-Kompetenz, Manifestly Void, Stay of Court Proceedings, Judicial Non-Interference, Pro-Arbitration Stance, One-Stop Adjudication

Accelerated Payment Notices and Follower Notices in the UK: An Affront to Justice?

In 2013, Her Majesty’s Customs and Revenue (the HMRC) gained significant powers in tackling the issue of tax avoidance in the form of follower notices (FN) and accelerated payment notices (APN). This has had a significant impact on the taxpaying community. For instance, in the tax year 2016/2017 alone, the HMRC accumulated GBP 520m in additional revenue through these powers. Many practitioners and judges have voiced their criticism against the powers but have yet to provide a comprehensive account of the inadequacies of these notices. Their very nature is punitive, and they are overly broad for their intended target, specifically, aggressive tax planners. To make matters worse, taxpayers are left without effective judicial safeguards. This article seeks to explain that both notices are an affront to justice by focusing on these aspects. Moreover, this article aims to shed light on recent cases such as Haworth that demonstrate that the judiciary is prepared to show some resistance against these notices. While the case provides a glimmer of hope for taxpayers, this article argues that judicial intervention alone is not enough; parliamentary intervention is also needed. UK tax law; Her Majesty’s Customs and Revenue; accelerated payment notices, follower notices; tax planning; tax administration; judicial review; rule of law.

Accelerated Payment Notices and Follower Notices in the UK: An Affront to Justice?

In 2013, Her Majesty’s Customs and Revenue (the HMRC) gained significant powers in tackling the issue of tax avoidance in the form of follower notices (FN) and accelerated payment notices (APN). This has had a significant impact on the taxpaying community. For instance, in the tax year 2016/2017 alone, the HMRC accumulated GBP 520m in additional revenue through these powers. Many practitioners and judges have voiced their criticism against the powers but have yet to provide a comprehensive account of the inadequacies of these notices. Their very nature is punitive, and they are overly broad for their intended target, specifically, aggressive tax planners. To make matters worse, taxpayers are left without effective judicial safeguards. This article seeks to explain that both notices are an affront to justice by focusing on these aspects. Moreover, this article aims to shed light on recent cases such as Haworth that demonstrate that the judiciary is prepared to show some resistance against these notices. While the case provides a glimmer of hope for taxpayers, this article argues that judicial intervention alone is not enough; parliamentary intervention is also needed. UK tax law; Her Majesty’s Customs and Revenue; accelerated payment notices, follower notices; tax planning; tax administration; judicial review; rule of law.

Intimate Violence in Colonial Bengal: A Death, a Trial and a Law, 1889–1891

Much excellent work has been done on the colonial Act X of 1891. Yet, three important contexts have largely gone missing. One is the framework of colonial Personal Laws where the practice of infantile marital cohabitation was embedded till it migrated to criminal laws. Unless we comprehend how the framework constrained judicial decisions and legal interventions, no single law can possibly make full sense. There were highly acrimonious public debates, too, especially in Bengal and Bombay Presidencies, that significantly shaped the Act. Legal reform in the field of gender, I argue, grew more out such debates than from colonial initiatives.