Power Of Judicial Review Research Articles

Form Review and Judicial Independence: A Comparative Perspective

This article examines the Court’s judicial review power that has gradually shifted from a strong-form review into a weak-form review. The shifting into weak-form review may affect judicial independence, both de facto or de jure, because Justices have considered the Legislature’s responds on the Court’s decisions. This approach diminishes the Court’s supremacy toward lawmakers. This article explores comparative insights from various countries that utilize those reviews, notably the United States of America (strong review), and commonwealth countries (weak review). It also elaborates on some ‘anomalies’ from both reviews. It raises two important questions: what insights can be learned from other countries’ judicial practices, particularly on the use of weak- form review? And, does weak-form review suitable to be enforced in Indonesia’s context? The weak review that is manifested in conditional decisions claims to be more politically palatable. Despite that strategic reason, the practice of conditional decision is prone to misuse as it could decrease constitutionalism and judicial independence. This paper argues that the weak-form review is not suitable for Indonesia’s constitutional law context, because the country lacks prerequisites and preconditions of strong control through parliament. The Indonesian Constitutional Court must return to its genuine authority as a strong-form review to strengthen legal constitutionalism.

A Critical Study on Judicial Review in Administrative Action

Judicial Review can be understood as a form of court proceeding, usually in the Administrative Court where the lawfulness of a decision or action is reviewed by the judge. Where there is no effective means of challenge, judicial review is available. The concern behind Judicial Review is that whether the law has been correctly applied with and right procedures have been followed. In order to scrutinize the legitimacy of administrative action and the statutes, the Constitution of India has given influences to the Higher courts and the Supreme Court of India. To guard the rights of public and implement the fundamental rights are the main objects of judicial review. If any difficulty arises between State and Center relation, then Article 246 and the Schedule 7 of the Constitution has marked the working zone for the regulation construction between both State and Center. Judicial review plays an important role as a protector when the executive, judiciary and legislature harm the Constitutional values and deny the rights. The judicial assessment is considered as an indispensable feature in the country. In India, there is parliamentary form of democracy where every section of people is involved in decision making and policy making process. It is true that the primary duty of the court to apply rule of law and is the groundwork of social equality. By exercising new powers of Parliament, rule of law which is to be applied by the court cannot be modified. All those here, who are doing public duty, are accountable. They have to work within the democratic provisions of the Constitution of India. The concept of separation of power and rule of law is judicial review. The influence of judicial assessment has been so long under Articles 226 and 227 in case of High Court and Articles 32 and 136 of the Constitution of India for the review.If found unconstitutional, the following provision shall be made void. The most distinctive feature of the united states supreme court is its power of judicial review. As the guardians of the constitution the judiciary is that they can review the laws which may violate the constitution of the country

On the Origins of Invalidation of British Colonial Legislation by Colonial Courts: The Van Diemen’s Land Dog Act Controversy of the 1840s – Part One

ABSTRACT By 1865 British Imperial governments had accepted that colonial courts had the authority to invalidate colonial statutes which contravened the relevant colony’s constitution. This situation arose notwithstanding the lack of any express grant of such jurisdiction to colonial courts in Imperial or colonial legislation. This paper evaluates the first instance of a colonial court asserting that jurisdiction, during the Dog Act crisis in Van Diemen’s Land (Tasmania) in the 1840s. Part one of the paper charts the background to, conduct of and judgment in the relevant litigation. The second part, which will appear in a future issue of this journal, explores the consequential attempts of the colony’s Governor to remove the judges from office and to re-enact the invalidated colonial law. The suggestion made is that the Dog Act controversy provides considerable insight into how, despite the absence of any explicit statutory grant of such jurisdiction, the power of judicial review of colonial legislation by colonial courts became established as an orthodox element of British colonial constitutional law in the latter nineteenth century.

Striking Balance in Democratic Governance: The Battle for Control between the Administrative and Legal Branches

Striking Balance in Democratic Governance: The Battle for Control between the Administrative and Legal Branches

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States

Abstract In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.

An Attack on the Rule of Law in Israel

Abstract This article analyzes the implications of the proposals of the Minister of Justice and the Chair of the Knesset's Constitution Committee to overhaul the judiciary of Israel. These proposals, if legislated, will undermine basic principles of democracy, the rule of law, and the protection of human rights. In the absence of a complete formal constitution and its relatively weak system of checks and balances, Israel has developed several institutions that protect the rule of law and human rights, including a Supreme Court with the power of judicial review of legislation; a balanced and professional system for selecting judges; a strong legal civil service, with a relatively independent attorney general. The so-called legal reforms deal specifically with these institutions, and seek to weaken or annul them. As such, this judicial overhaul is tantamount to a revolutionary attempt to change the regime and would undermine the democratic character of Israel.

Legal Remedies for Government Intervention in Cross-border M&A: A Comparative Research Between China and the United States

The role of the government in cross-border M&A, as well as the intervention means and authority it adopts, have always been the focus of controversy in the practical and theoretical circles. Based on the perspective of comparative research between China and the United States, this paper, and then first analyzes the national security review systems of different countries analyzes the remedies when the governments intervention in cross-border mergers and acquisitions causes damage to private enterprises. At the same time, this paper will also analyze the existing system of government intervention in cross-border mergers and acquisitions of different countries and discuss the development trend of state intervention system in the new era based on the analysis of the TikTok case. Finally, this paper will ultimately propose suggestions for improving Chinas existing national security review system and further propose suggestions for improving the existing relief system based on the analysis of existing remedies. Suggestions for improving Chinas national security review system mainly include the formation of laws with a higher level of effectiveness, the improvement of supervision mechanisms, and the provision of remedial rights for private enterprises. The suggestions on the improvement of the remedy system mainly focus on the improvement of the host country, mainly including the power of judicial review granted to domestic judicial institutions and the improvement of the system of prior consultation agreements.

Who Intervenes in Supreme Court Cases in Canada?

AbstractWith the patriation of the Constitution in 1982, the Supreme Court of Canada (SCC) inherited extraordinary political powers. In response to the Court's expanded power of judicial review, there was a sizeable increase in the number of political actors “intervening” in SCC cases. Scholars of Canadian law and politics are deeply divided on whether civil society participation in the courts—particularly as intervenors—is democratically legitimate. This important debate cannot be settled without an empirical evaluation of who intervenes. This research note provides an analysis of all the Charter cases heard by the SCC between 2013 and 2021. In contrast to the field's dominant theory on interest-group legal mobilization—the Court Party thesis—the findings reveal that equity-deserving interest groups, such as those representing women, have an irregular presence in Court. Instead, powerful actors such as governments and legal associations make up a majority of the “repeat player” intervenors. While further research is warranted, the research note concludes that without the maintenance of sufficient support structures, intervention may be unable to perform a democratizing function.

A brief analysis of Article 368 and some important cases around it

This paper discusses the relationship between the judiciary and the legislature in India. It argues that the judiciary has the power of judicial review, which allows it to strike down laws that it deems to be unconstitutional. This power has been used by the judiciary to balance the power of the legislature and to ensure that the rights of citizens are protected. The paper begins by discussing the history of judicial review in India. It then examines the two landmark cases in which the Supreme Court of India has upheld its power of judicial review: Kesavananda Bharati v. State of Kerala and Minerva Mills v. Union of India. The paper then discusses the implications of judicial review for the relationship between the judiciary and the legislature. The paper argues that judicial review is a necessary check on the power of the legislature. It also argues that judicial review can help to protect the rights of citizens. However, the paper also acknowledges that judicial review can be used to interfere with the democratic process. The paper concludes by arguing that the judiciary and the legislature should work together to ensure that the power of judicial review is used in a responsible way and focuses on the point that the legislature should be transparent about its decision-making process and that it should be accountable to the people.

STATUS OF JUDICIAL REVIEW ON EXISTING ENVIRONMENTAL LEGISLATION IN PAKISTAN

This research article examines the status of judicial review on existing environmental legislation in Pakistan. The article discusses the relevance of judicial review in ensuring the effectiveness of environmental laws and regulations. The research questions explore the extent to which the courts in Pakistan have used their power of judicial review to enforce environmental protection laws. The research objectives are to identify the challenges faced by the courts in exercising judicial review and to suggest recommendations for improving the effectiveness of environmental law enforcement in Pakistan. The research methodology used is a mix of literature review and case studies. The findings reveal that the courts in Pakistan have been reluctant to exercise their power of judicial review, resulting in the lack of enforcement of environmental laws. The literature review suggests that this reluctance is due to various factors, including political interference, lack of awareness, and insufficient resources. The article concludes by recommending the strengthening of the institutional framework for environmental law enforcement, increasing public awareness, and providing adequate resources to the courts to enable them to effectively exercise their power of judicial review.

Conceptual Framework of Judicial Review with Reference to Nepal

The power of the Judicial Review is considered as the touchstone to test constitutionality of the state action including legislation. It brings life and dynamism to the constitutional system. It brings about constitutional clarity and fulfills any gaps that may arise in the constitution. Judicial review controls the arbitrariness of government and protects civil liberties by maintaining the rule of law. The judicial review is exercised to make state organs and bodies as well as government and public officials disciplined and accountable. It is the foundation of constitutional government. The scope of judicial review can be categorized as judicial review of legislation, judicial review of executive action, and judicial review of judicial action. There are several grounds the judiciary can exercise its power. Compliance with the constitution and protection of civilian rights are the fundamental basis of judicial review. The grounds upon which state organs are subject to control by the judicial review have been classified as illegality, irrationality, and procedural impropriety. Its concern is whether a decision-making authority has exceeded its power, committed an error of law, committed a breach of rules of natural justice, and reached a decision without reasonable ground or by abusing its power. The concept of judicial review is not away from criticism. It is often said that judicial review is intolerably uncertain and amounts to little more than a license for judges to interfere arbitrarily with the machinery of government and administration. The power of judicial review has been criticized for being against democratic legitimacy. The question arises that is justifiable for the court to question the validity of the actions of the elected members of the parliament. This question makes the concept of judicial review as the most controversial feature of the Constitution. But this right is not an authority to make the court higher and more powerful than other organs, but it is a means to establish constitutional supremacy and rule of law.

Article 360 of Indian Constitution – An Analysis

Abstract: The thought of emergency has passed into political hypothesis. The basic idea, to make specific emergency provisions in the Constitution, was to protect against unintended emergence of autocracy as a result of internal disorder, external attack or battle. In the Indian Constitution, there is a separate part present for the emergency provisions. Part XVIII, therefore, is a component of innovation in our Constitution. The provisions of Financial Emergency are enshrined under Article 360 of the Constitution. This provision provides a safeguard for the Union Government if any threat exists to the financial stability of India. If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, then he may declares a Financial Emergency. The 38th Amend 1975 states that satisfaction of President to declare a Financial Emergency is immune from Judicial Review but provision is subsequently deleted by 44th Amend which restored power of Judicial Review even over satisfaction of President. A financial emergency has never been declared. A situation for declaring it arose in 1990 to 1991 during Prime Minister Chandra Shekhar’s regime but was avoided by selling off the gold assets of India. The 1992 balance of payments crisis that soon followed, which took India to the verge of bankruptcy, was averted by restructuring and devaluing the rupee, though this situation constituted a classic reason for declaring a financial emergency. Article 360 empowers Union govt to take control over state govt on every financial matter deals by a state. The Financial Emergency has never been imposed in any part of country, neither has Article 360 been used till now.

The Executive Branch and the Origins of Judicial Independence

The early history of the federal judiciary as an independent branch of American government presents a puzzle. How did an institution that barely existed as a separate entity before the American Revolution be¬come coequal, and in some ways preeminent? Most accounts of the judiciary’s rise tell a story in which the courts consolidated their authority—especially the power of judicial review—by tacitly agreeing to withdraw from partisan politics. This article considers early judicial independence through a differ¬ent lens—the idea that the executive and legislative branches cannot interfere with judicial proceedings. This notion, which seems self-evident to us now, was less clear at the Founding. State legislatures in the 1780s routinely overrode judicial decisions, and it was not until the 1820s that courts seriously began to question the practice. As this article shows, the most insistent assertions of judicial invio¬lability came not from courts, but instead from the executive branch officials—in large part because they had little other choice. With a threadbare bureaucracy and no standing army, the early federal gov¬ernment existed more in theory than in fact. What it had was courts, which sat in every major port city and enjoyed broad jurisdiction over maritime matters. Forcing foreign disputants to adjudicate their claims in court spared the executive from making decisions that risked anger¬ing powerful European empires, and enabled it to leverage judicial resources to solve problems it could not manage on its own. In so doing, executive officers helped transform a still-undefined concept of judicial independence into a putatively hard barrier between the branches.

The politics of dismissal of the government in Pakistan and the role of the judiciary (1988-1997)

The judiciary’s role is significant in the political and constitutional development of a federal system, as the sustenance of democracy in such countries depends mainly on the independence of the judiciary. This study investigates the judiciary's role in complementing the dictatorial moves of the presidents and non-elected factions against the governments. The 8th Constitutional Amendment shifted the power balance to the President, thus establishing a quasi-parliamentary system. Due to the lack of power balance, the president and the prime minister did not work together to safeguard the national interest. The opposition factions always asked the President to dismiss the government. Instead of serving as a check on the government and providing stability to the democracy, the President used this power to dismantle the setup. In such cases, the judiciary has been asked to exercise the power of judicial review. The judgements of the judiciary in such cases had far-reaching effects on the stability of the political system. While passing the judgement, the judiciary looked at a powerful president rather than the principle of merit and justice. The judiciary upheld majority dismissals, mainly due to the nexus between the military and the President, which shows its weakness vis-à-vis other state institutions.

Conceptual Framework for Assessing the Performance of Kenyan Courts Undertaking Judicial Review of Legislative Action

Article 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitutional interpretation and to uphold constitutional supremacy by declaring void any law that is inconsistent with the Constitution or invalid any act or omission contravening it. Within the current Kenyan context, judicial review of legislative action has become the common practice. The courts are constantly drawn into the realm of legislative matters at the national and devolved levels of government established under the Constitution. However, the High Court’s role is limited to interpretation only and it cannot compel Parliament to modify the legislative action contravening the Constitution. Conversely, where the Legislature disagrees with the Court’s assessment of what the constitutional norms require it cannot substitute the Court’s interpretation with its own. The courts are subsequently tasked with the delicate prospect of balancing the legal and political constraints that underlie any case of judicial review of legislative action. This paper develops a conceptual framework for assessing how courts, in general, go about exercising their power of judicial review of legislative action in a way that enables them to adhere to the requirements of the separation of powers doctrine, while considering the legal and political constraints under which they must operate. The resulting framework proposes four possible types of courts that may emerge based on how a court balances the legal and political constraints prevailing upon it.

Separation of Powers in Judicial Enforcement of Governmental Ethics in Kenya and South Africa

The Kenyan Constitution, 2010 and the 1996 South African Constitution prescribe eligibility criteria for appointment into public office. The courts in both countries have been vested with the role of policing the boundaries of constitutionality of the exercise of power by the other arms of government. This mandates courts to ascertain whether an appointment by the executive branch meets the constitutionally prescribed threshold. The power of judicial review of appointments by the executive branch has brought the question of separation of powers between the judiciary and the executive into sharp relief. This paper discusses the separation and intertwining of powers between these two branches of government in the context of their respective roles in public appointments.

State Supreme Court Responsiveness to Court Curbing: Examining the Use of Judicial Review

State legislatures introduce court-curbing legislation as they threaten to restrict the independence of state high courts. While scholars have examined when this legislation is introduced and what drives the introduction, we know little about how state supreme courts react to this legislation. In this paper, I begin the examination into how state courts react to court-curbing legislation by looking to the court’s exercise of its judicial review power. I theorize that state supreme courts are less likely to invoke their power of judicial review when facing increased court-curbing legislation because judicial review is the most direct form of communication between the branches. I also argue communication is necessarily conditioned by the methods of selection and retention in the states. Examining narrow and broad court curbing, I find that neither type of introduction affects the use of judicial review by the state supreme courts and that, in line with previous scholarship, courts are using legislative ideology as an informational signal in this interbranch interaction.

Dobbs e le allarmanti implicazioni di un overruling politico in tema di aborto

SOMMARIO: 1. Una sentenza attesa: Dobbs v. Jackson Women’s Health Organization - 2. Motivazioni offensive e preoccupanti - 3. Una decisione all’insegna del principio democratico e della chiarezza normativa? - 4. Questioni spinose - 5. Dobbs, ovvero la morte del potere di judicial review della SCOTUS?
 Dobbs: the alarming implications of a political overturning of the right to abortion
 ABSTRACT: With Dobbs v. Jackson Women’s Health Organization the Supreme Court of United States overturned Roe v. Wade, upending almost 50 years of abortion rights in the United States. In commenting the case this article highlights the many problems arising from the decision: its bringing about new divisive legal issues; its possible outreach in terms of other fundamental liberties that could soon be cancelled; and especially the decline of the Supreme Court legitimacy that could call into question its very judicial review power.

Judicial Review at the Asian Development Bank Administrative Tribunal

AbstractInternational organizations create independent administrative tribunals to decide employment disputes that jurisdictional immunities place beyond the reach of national courts. The Asian Development Bank Administrative Tribunal's express mandate is to enforce the terms of employment of staff members but, in discharging that function, it has not hesitated to review the validity of those terms and strike down those that contravene the Bank's basic legal documents and “general principles of law”. This paper reviews how this power of judicial review emerged in the case law of the Tribunal, and what it has meant for both the institutional autonomy of international organizations and the fair treatment of staff members.

Permanent commission to female officers of armed forces in India

In the past decade, the State via its three organs has unarguably shown an immense enthusiasm for social change, and the most revered of all the media to achieve the same has been ‘judicial review’. In 2020, President Ram Nath Kovind at the International Judicial Conference themed ‘Judiciary and the Changing World’ also applauded the proactive pivotal role of the Supreme court in bringing progressive and dramatic social transformation through radical reforms. One of such instances was where the Apex court exercising its power of judicial review gave a boost to this social revolution, invoked the idea of transformative constitutionalism and tarmacked the road for female officers to permanent commission in the Armed Forces whilst promoting the idea of gender equality and removing gender bias. This article analyses the transformative character of the Indian constitution in the light of the judgements of the Supreme Court in “The Sectt. Ministry of Defence v. Babita Puniya (2020)” and, “Union of India v. Ltd. Cdr. Annie Nagaraja (2020)” which endorsed the ‘principle of non-discrimination’ on ground of sex thereby eradicating the gender stereotyes which associate women with ‘weaker sex’.