Judicial Review Research Articles

Mekanisme Pengurangan Masa Hukuman bagi Narapidana Korupsi di Lembaga Pemasyarakatan Kelas II A Bengkulu Dalam Fiqih Siyasah

With the issuance of the Regulation of the Minister of Law and Human Rights Number 07 of 2022 which fills the legal vacuum resulting from the judicial review of Government Regulation Number 99 of 2012 concerning the Second Amendment to Government Regulation Number 32 of 1999 concerning the Requirements and Procedures for the Implementation of the Rights of Correctional Inmates, it has become something that attracts attention. Because of course the mechanism for reducing the sentence thanks to the judicial review has changed. The main question of this study is whether information about the new sentence reduction mechanism has reached the prisoners. Meanwhile, it is generally known that the mechanism for reducing the sentence is not easy for prisoners to understand. Because in fact the reduction of the sentence is the right of all prisoners as regulated in the law. Thus, the purpose of this study is to determine how the mechanism for reducing the sentence in Class II A Bengkulu Prison works. This study is a qualitative study with an empirical legal approach. The results of the study show that the sentence reduction mechanism that applies according to the regulations is not effective in making prisoners get their rights, namely a reduction in sentence. In conclusion, the lack of understanding of prisoners regarding the mechanism for reducing the sentence creates a great potential that prisoners can fail to obtain their constitutional rights, namely a reduction in sentence.

A Neo-Federalist View of the Supreme Court’s Docket: Analyzing Case Selection and Ideological Alignment

For more than seventy years, scholars have engaged in an intense debate over a core constitutional question: what restraints does the Constitution place on Congress’s power to limit the jurisdiction of the federal courts? Far less attention has been given to an equally important real-life question: how does the operation of the jurisdiction, as defined by Congress and the Supreme Court, comport with the assigned role of the federal courts in the system of government established by the Constitution? This Article takes a novel approach: it draws on constitutional theory to devise a set of tools for addressing the operational question empirically. The theory derives initially from Professor Akhil Reed Amar’s landmark article focused on the constitutional debate. In that article, Amar developed and defended a “neo-Federalist view” of Article III. This view emphasizes “the Federalists’ reliance on federal judges” to enforce federal law and “the critical role of judicial review in Federalist theory.” The present Article builds on Amar’s insights as well as my own empirical studies to offer a neo-Federalist view of the Supreme Court’s docket. It also takes account of two key developments that have occurred since the Founding. A century ago, Congress enacted the “Judges’ Bill”; in its aftermath, as Robert Post has written, the Supreme Court took on a new role as “the proactive manager of the system of federal law.” More recently, the Court has come to be viewed from a perspective that is centered on ideology. There is a narrative, and it is framed as a conflict between “liberal” and “conservative” positions. The purpose of the Article is to provide a set of analytical tools for examining the Court’s work from both neo-Federalist and post-Founding perspectives. To that end, it outlines an objective, transparent case classification system for empirical research focused on both input (the selection of cases for plenary consideration) and output (the outcomes of the resulting decisions). Such research can show how the Court has carried out its managerial function and thus enable us to reach sound conclusions about current or future proposals for reform—for example, adding new categories of cases to the Court’s mandatory jurisdiction. And the system is uniquely well designed to map the ideological divide in the federal courts today. That is because, in broad terms, what defines that divide is that both liberals and conservatives embrace a strong commitment to judicial review to protect individuals against government overreaching, but they disagree profoundly over where and how that power should be deployed. An important contribution of the Article is the distinction it draws between issue polarity—for example, did the court rule in favor of the constitutional claim or against it?—and ideological direction. Issue polarity—because it is grounded in the structure of federal law—is a constant over time; ideological direction is tied to a particular era. Only by recognizing and applying this distinction, the Article argues, can one fully understand the shifts in ideological alignment over time—or the contours of the ideological divide today.

Riding the Cappelletti Waves: The Philippine Supreme Court and the Sources of International Law

Abstract Mauro Cappelletti’s waves of domestic and transnational constitutionalism have reached Asia where courts exercise constitutional review and engage with international law in the process. Institutional and sociological legal scholars celebrate this as the inexorable global constitutionalization of international law through the liberal structures of judicial review and dialogue. A previous article cast doubt on the inevitability of global constitutionalization in view of material inconsistencies in interactions with international law by Asian courts, even those with rule of law and liberal democratic traditions. The present article on the Philippine Supreme Court sheds light on an underlying cause: arbitrary and contradictory selection and application of secondary rules for identifying international law by its source. The consequent degradation of international law and delegitimization of judicial engagement with it are the makings of the third wave of judicial review that Doreen Lustig and Joseph Weiler warned will reverse the gains of transnational constitutionalism.

Into the matrix and beyond: seeking an understanding of problem priority-setting cases in the English courts

Drawing upon and developing Chris Newdick’s work on legal regulation of resource allocation in healthcare, this article analyses a series of problematic judicial review cases in the English courts in which judges appear to move away from scrutiny of procedure towards a form of review that is much more substantive in nature. The ‘priority-setting rights matrix’, which Newdick developed in later work, enables us to distinguish these cases from others, calling into question the claim that the jurisprudence in this field has evolved in a linear fashion. However, while the matrix has considerable value as a classificatory tool, it requires supplementation if we are to understand why judges respond differently in distinct scenarios. To this end, the article explores potential reasons for judicial preference for individual interests over collective priority-setting goals, which may explain the shift away from procedural review which characterises these cases.

Kewenangan Judicial Review Undang-Undang oleh Mahkamah Konstitusi dalam Sistem Negara Hukum Indonesia

Indonesia is a state based on the rule of law. This requires that all governmental processes and legal products, including laws, must comply with the constitution as the highest legal norm. The authority of the Constitutional Court to conduct judicial review of laws against the 1945 Constitution of the Republic of Indonesia is a concrete manifestation of a systematic recognition of the principle of constitutional supremacy, the protection of citizens' rights, and the strengthening of checks and balances among state institutions. Therefore, the judicial review authority held by the Constitutional Court holds a highly strategic position within Indonesia's legal system and is fully aligned with the principles of the rule of law.

Early parliamentary dissolutions and judicial review: lessons from comparative cases

In this article, I explore some implications of judicial challenges to early dissolutions of national parliaments from a comparative perspective. I assess two cases where the constitutionality of the dissolution was upheld (Germany 1983 and 2005) and four where it was not (Czechia 2009, Nepal February 2021 and July 2021 and Pakistan 2022). The evidence suggests that judicial intervention in parliamentary dissolution disputes is often inferred rather than explicitly codified in legal statutes, underscoring the profound impact unwritten constitutional norms and democratic tradition can have on the political process. Predictably, judicial scrutiny of governmental actions enables courts to oversee and, when necessary, rectify breaches of constitutional limits and instances of executive overreach. The Nepalese and Pakistani cases further suggest that the judiciary can play an active role in safeguarding the cardinal principle of parliamentarism, dictating that the legislature must be able to subject governments to the test of confidence when required or if it so desires. A review of the history of judicial intervention in earlier cases of assembly dismissals in Pakistan, however, highlights how this process is not always consistent and unbiased. Gaining a deeper understanding of these interactions is important, given their highly consequential nature, as well as timely, given the increasing reliance on the judicial branch for the adjudication of disputes related to parliamentary dissolution in recent years.

Defining Issues of Public Policy Exceptions in International Commercial Arbitration: Promoting Uniform Model Norms

The concept of the ‘public policy exception’ in International Commercial Arbitration (ICA) is pivotal in assessing the enforceability of arbitral awards. Although ICA was initially designed to enhance predictability and minimize political interference, this exception permits national courts to deny enforcement of awards that contradict domestic public policy. This provision has sparked considerable debate and resulted in a lack of consistency in judicial review standards across various jurisdictions. The phrase ‘public policy’ is notoriously ambiguous and exhibits considerable variation among states, often embodying fundamental legal, moral, political or social principles that are distinctive to each nation. Attempts to delineate and restrict this exception have been inconsistent; some nations adopt narrow interpretations that align with international standards, while others maintain broader, more adaptable definitions. The interplay between procedural and substantive exceptions further complicates the understanding of public policy in ICA, potentially leading to conflicts between national and international norms. To foster uniformity, a harmonized approach is necessary, one that reconciles state sovereignty with the principles of international arbitration. This may involve the adoption of transnational public policy standards or the establishment of clearer guidelines within international instruments such as the New York Convention and UNCITRAL Model Law. Consequently, achieving consistency in the application of the ‘public policy exception’ is crucial for enhancing the predictability and efficacy of international arbitration.

The right of prisoners to be released from punishment due to illness

The European community and domestic human rights organizations have repeatedly noted the systematic violations in providing assistance to sick prisoners in Ukraine. At the same time, the number of prisoners released due to illness remains insignificant. The main provisions of the institution of release from punishment due to illness of convicts are analyzed. The main problems of legal relations in the field of release from punishment due to illness, as well as the practice of the European Court of Human Rights, are clarified. It is noted that modern criminal legislation in the field of release from punishment due to illness is not perfect and needs to be improved, including by improving the legal procedures for assessing diseases and their judicial review.

ANTARA MASA ORDE BARU DAN MASA REFORMASI DALAM PERKEMBANGAN HUKUM TERHADAP PERLINDUNGAN PEREMPUAN

In the International Human Rights Agreement prohibiting discrimination against women has been ratified by 169 countries (Universal Declaration of Human Rights). Article 1 paragraph (3) and the 1945 Constitution, which reads "(3) The State of Indonesia is a state of law" which means an ideal home for human rights where only in this rechtsstaat there is a guarantee of human rights such as judicial independence, fair legal process, judicial review. The problem of how the law developed regarding the protection of women between the New Order and the reform era, then by conducting normative legal research where the approach used is legislation, the results obtained that on a scale of 1-10 there are aspects of respect, protection and fulfillment of human rights only at 5.40% as well as the right to be free from torture which is at 5.02% where both variables are certainly a reflection of the protection of women's rights themselves. In addition, the Legal State Index surveyed by the World Justice Project from 2015-2023 means that after the reform era it tends to stagnate regarding the increase in its democracy rate. At the process level, discriminatory practices still occur widely, the main cause being the economic and social status of those seeking justice. Although the courts are considered relatively responsive to women as victims of violence. However, access to the community is still narrow.

<em>Moore v. Harper</em>, Evasion, and the Ordinary Bounds of Judicial Review

In Moore v. Harper, the Supreme Court confronted head on for the first time the so-called independent state legislature theory (ISLT), which posits that state legislatures have exclusive authority to enact laws and regulations governing federal elections and that those laws are not subject to state court judicial review pursuant to state constitutions. Although the Supreme Court resoundingly rejected the most robust version of ISLT in Moore, commentators have argued that language in that opinion opened a dangerous door to federal supervision of state election law. This Article argues that those claims are wrong. Under Moore, federal court review is only appropriate to prevent state courts from evading federal interests, and as Moore itself made clear, the federally protected interest under the Elections Clause is the prohibition of state courts “transgress[ing] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Looking to the Court’s reasoning in Moore, as well as constitutional history and fundamental principles of state sovereignty, this Article argues that the ordinary bounds of judicial review are exceptionally broad, and there will virtually never be a case in which a state court transgresses those bounds in a way that amounts to an arrogation of power. The upshot, then, is that Moore did more than reject the essential premises of ISLT; it also made it extremely unlikely that any future ISLT claims will succeed.

The Legal Challenges of Misinformation: Regulating Misinformation in the Digital Age

The quick development of online platforms has restructured the way, the information is produced, disseminated, and consumed. Although, these platforms have many advantages, they have also become fertile ground for the mass spread of misinformation. Misinformation, means false or inaccurate information that is spread without the purpose of deceiving—can shape public opinion, influence elections, cause violence and endanger public health, as has been observed during occurrences like the COVID-19 pandemic and political crises. The legal control of misinformation poses sophisticated challenges for legislatures, courts, and regulatory agencies as well. This abstract discusses the multilateral legal difficulties of controlling misinformation in the digital era. It reviews how various jurisdictions are responding to the phenomenon, including legislation to increase platform responsibility, encourage transparency in content moderation, and impose penalties for intentional dissemination of falsehood. Yet, controlling misinformation is not easy as it involves a delicate balance between preventing dangerous content and safeguarding the constitutional and international human rights-protected right to freedom of speech. Apart from this, the paper critically examines the role of technology firms and social media platforms, which have increasingly assumed quasi-regulatory roles by enforcing their own content moderation policies. These steps, though at times successful, are of concern regarding transparency deficits, arbitrary censorship, and the centralization of power in the hands of private actors. The research also points to the necessity of an integrated legal and policy approach encompassing judicial review, stakeholder participation, and public education in order to fight misinformation without sacrificing democratic principles. At the conclusion, this study seeks to present a thorough understanding of the state of law related to misinformation and provide recommendations for an even-handed, rights-oriented regulation in the age of the internet.

The Administrative Judiciary Adopts the Theory of Separate Actions

This research examines the development and application of the theory of separate administrative acts within the framework of administrative judiciary. It highlights how the administrative judiciary, particularly in France, Lebanon, and Iraq, has expanded its oversight by distinguishing between sovereign (governmental) acts and separable administrative actions. Originally introduced to protect administrative authority from judicial interference, the theory has evolved into a critical judicial tool to ensure the rule of law and protect individual rights against arbitrary administrative decisions. The study elaborates on the theoretical foundations of judicial oversight, its implications for the legitimacy principle, and its practical applications across various legal domains such as electoral, tax, war-related, and international administrative acts. Through a comparative legal analysis, the research reveals how courts have narrowed the scope of sovereign acts, recognizing that many administrative actions though rooted in government authority are subject to judicial review when they affect citizens' rights. The work concludes with recommendations for strengthening administrative judicial systems in Iraq to ensure legal clarity, safeguard constitutional rights, and refine the balance between state sovereignty and individual protection.

Implikasi Dispensasi Kawin Sebagai Penyebab Tingginya Resiko Angka Perceraian Bagi Anak Akibat Perkawinan Paksa Berdasarkan Hak-Hak Perempuan

The purpose of this research is to analyze the impact of marriage dispensation on children and the legal recovery steps related to it. Marriage dispensation regulated in Article 7 paragraph (2) of Law No. 16 of 2019 triggers various problems, especially the increase in divorce rates and violations of women's rights. This policy is considered discriminatory because it opens up opportunities for forced marriages for girls who are not yet mature physically, mentally, or economically. This research uses normative juridical methods and a conceptual approach to analyze the impact of marriage dispensation and legal recovery measures. The results indicate the need for judicial review and legislative review to tighten regulations, prevent abuse, and protect the rights of children and women. This is expected to encourage the revision of legal norms to better align with the principles of justice and child protection.

JUDICIAL REVIEW OF ORDINANCES IN INDIA: SAFEGUARDING THE BASIC STRUCTURE IN THE FACE OF EXECUTIVE POWER

ABSTRACT: The issuance of ordinances by the government and its ensuing judicial examination has historically been a controversial topic in India’s constitutional dialogue. Recent developments, notably the Delhi (Civil Services) Ordinance of 2023, have rekindled discussions on the effectiveness and suitability of the judicial review processes established for such instruments. This study aims to critically examine the methods of judicial review of ordinances, specifically concerning the Basic Structure theory, a fundamental element of Indian constitutional law as established in “Kesavananda Bharati v. State of Kerala (1973).” The paper commences by delineating the constitutional framework before the “Kesavananda Bharati” verdict, emphasizing the imperative of protecting the Constitution from capricious modifications. It subsequently explores the post-Kesavananda period, during which the Supreme Court employed the Basic Structure test in its rulings to evaluate legislative and executive activities, therefore fortifying the sanctity of fundamental constitutional values. The debate centres on the analysis of judicial review mechanisms relevant to ordinances. This analysis utilizes the conceptual frameworks of negative and intermediary methods to review, as described by Professor Shubhankar Dam, to evaluate their relevance and sufficiency in the context of ordinances. These two methodologies—though varying in scope and application—function as mechanisms to guarantee that ordinances, especially those affecting essential constitutional principles, do not compromise the Basic Structure. The study presents a system for analyzing ordinances that is consistent with the ideas of the Basic Structure doctrine, based on a collaborative and nuanced analysis. The paper proposes a strong framework for judicial review to guarantee that ordinances, particularly those impacting fundamental constitutional principles, get thorough examination to preserve the Constitution’s integrity.

Structural litigation, destabilization rights and trans-judicial cooperation networks: lessons from comparative constitutional law

This paper intends to present a comparative analysis of practices of structural litigation and reform, exploring the combination of both judicial and extrajudicial agencies, mechanisms and procedures. By specifying a destabilizing function that fundamental rights may take and comparing the reconstructive role that different actors may perform in cooperation, the study advances the hypothesis that thesuccess of structural reforms rely both on the careful design of judicial decrees and revisable monitoring mechanisms (when courts are called upon action) and on the cooperation with trans-judicial agencies, such as administrative organs,the Public Prosecutor’s Office or the Public Defenders’ Offices. The Brazilian experience of judicial review is then placed within a wider context, covering both the American practice of structural injunctions of complex enforcement and akin Latin American experiences.

Reconciling Constitutional Ideals: A Contemporary Reassessment of the Basic Structure Doctrine

The Indian Constitution establishes a framework where no governmental organ is supreme, mandating that all operate within its boundaries. While the Constitution should provide explicit mechanisms for judicial review, the judiciary has, in exceptional cases, developed doctrines like the 'basic structure' to ensure constitutional supremacy. The absence of explicit limitations on parliamentary amendment power in Article 368 led to the Ninth Schedule's problematic expansion, prompting the Supreme Court in the Kesavananda Bharati case to introduce the 'basic structure' doctrine, imposing implied limits. It emerged as a mechanism to impose limitations on Parliament's constituent power. However, the doctrine's ambiguity and lack of textual basis, coupled with the absence of clear criteria for its application, have raised concerns about judicial overreach and potential violations of the separation of powers. This paper examines the rationale behind the 'basic structure' doctrine, its composition, and its impact on the separation of powers. It also considers the need for explicit constitutional amendments to define the doctrine and address the risks associated with individual judicial interpretations. This paper examines the academic and historical origins of the doctrine, its evolution post-Kesavananda Bharati, and the constitutional and jurisprudential debates surrounding it in the contemporary era. The doctrine’s applicability to Parliament’s legislative authority, the precedential strength of Kesavananda Bharati under the doctrine of stare decisis, the concept of legislative overruling and its implications for constitutional governance, and the intersection of constitutional morality with the basic structure doctrine. These issues are integral to the broader discourse on separation of powers and judicial review. This paper critically engages with these themes, situating them within the present-day realities of India’s constitutional framework.

Criterion of non-compliance with a judicial act: a special limit for reviewing judicial acts based on newly discovered and new circumstances, or a temporary tool in the process of manually balancing the principle of legal certainty?

The subject of this article is an analysis of the criterion of non-execution (not fulfilled or partially fulfilled) as a special limit on the review of judicial acts. The author describes the history of the emergence and development of the criterion of non-fulfillment in the practice of the Constitutional Court of the Russian Federation and in legislation, provides critiques of the criterion found in literature, its transformation into a criterion for the reviewing a judicial act, and also raises questions about the future of the criterion of non-fulfillment in the system of judicial act review given its modernization. Additionally, based on the characteristic of the specificity of the criterion of non-fulfillment, the author puts forward a hypothesis about the special legal nature of a number of new circumstances (recognition of a norm/its interpretation as unconstitutional, determination or change of the practice of norm application, cancellation of a regulatory act in the course of administrative norm control). The research employs methods such as historical, systemic, axiological, formal-legal, functional, sociological methods, as well as analysis, synthesis, and modeling. The author concludes that despite the fact that the criterion of non-fulfillment is currently formally almost excluded from legal practice, fully abandoning it is premature. In the systematization of legislation on the review of judicial acts, this criterion may be taken into account (with appropriate refinement). The author hypothesizes that the legal nature of the circumstances to which the criterion of non-fulfillment may be applied falls outside the concept of new circumstances and indicates the need to distinguish them into a separate group of grounds for reviewing judicial acts. Considering that in legal reality there are still several situations to which the review mechanisms for newly discovered and new circumstances apply because procedural legislation lacks other tools for a court to review its own act, it is proposed to modernize the content of procedural codes in this part. The results of the work can be used for the development of procedural legislation and the formation of a more coherent view of the system for reviewing judicial acts (extra-institutional and institutional stages), as well as in the educational process when studying relevant disciplines.

The Role of Administrative Judicial Review in Protecting Rights and Freedoms in Algeria

The Role of Administrative Judicial Review in Protecting Rights and Freedoms in Algeria

Если не суд, то кто?

The article addresses the issue of the admissibility of judicial review of the activities of bodies of legislative and executive power carried out within the framework of their discretion, and primarily when they resolve problems relating to public interests. It is concluded that the courts should be able to exercise control over such activities, since only in this case the implementation of public interests can be ensured in the State. At the same time, the admission of such control does not contradict but fully complies with the principle of separation of powers. Emphasis is put on the fact that due to the very nature of the bodies of legislative and executive power, it is far from always possible to take into account various interests and ensure a balance between them. However, the judicial power is fully capable of this.

From First-Best to Least-Worst: An Anti-Idealist Defence of Judicial Review

From First-Best to Least-Worst: An Anti-Idealist Defence of Judicial Review