Judicial Review Research Articles

CompLaw: A Coding Protocol and Database for the Comparative Study of Judicial Review

Abstract A growing theoretical literature identifies how the process of constitutional review shapes judicial decision-making, legislative behavior, and even the constitutionality of legislation and executive actions. However, the empirical interrogation of these theoretical arguments is limited by the absence of a common protocol for coding constitutional review decisions across courts and time. We introduce such a coding protocol and database (CompLaw) of rulings by 42 constitutional courts. To illustrate the value of CompLaw, we examine a heretofore untested empirical implication about how review timing relates to rulings of unconstitutionality (Ward and Gabel 2019). First, we conduct a nuanced analysis of rulings by the French Constitutional Council over a 13-year period. We then examine the relationship between review timing and strike rates with a set of national constitutional courts in one year. Our data analysis highlights the benefits and flexibility of the CompLaw coding protocol for scholars of judicial review.

Courts and democratic backsliding: A comparative perspective on the United States

AbstractThis article argues that courts in the United States are comparatively less likely to be captured than those of many other countries and more able to resist an authoritarian populist regime, but also somewhat more likely to facilitate democratic backsliding on their own account. In this way, they potentially could—and arguably already do—provide a relatively rare case of “abusive judicial review” by independent courts. The article also briefly considers whether the US experience provides any insights for the relationship of courts and democratic backsliding in other countries, and especially how the ability of courts to resist capture might be bolstered.

Judicial Review of the EU's Informal Migration Tools - Admissibility in Cases of Tunisia and Türkiye Deals

Accountability of the EU in external migration management has become increasingly challenging due to the widespread use of informal tools. Since the Amsterdam Treaty, the EU has exercised this competence primarily through readmission agreements. However, following the urgency of the migration crisis post-2015, coupled with the procedural and legal constraints of readmission agreements and the necessity for flexibility, informal tools like the EU-Turkey Statement (2016) have gained preference over hard law sources. Judicial review of these instruments has only been tested in the case of Türkiye, where the CJEU rejected the case during the admissibility stage. This article evaluates the judicial review of informal migration tools within this context. It does so by examining the potential for annulment against the EU-Tunisia Memorandum of Understanding (2023) from a procedural perspective, drawing upon criteria derived from the Türkiye case and relevant CJEU jurisprudence. It is concluded that the current criteria regarding the status of applicants are insufficient to bring the EU before the CJEU. Therefore, given the ongoing increase in the use of informal tools, there is a pressing need to reform the procedural rules concerning actions for annulment.

Judicial Review of Business Permit Revocation for Bankrupt Mining Companies in Indonesia

The Revocation of Mining Business License is an administrative measure ensuring compliance in the mining sector. Government Regulation 96 of 2021 allows direct imposition of this sanction, especially for companies declared bankrupt. However, complexities arise during asset settlement overseen by the curator, where a judge may order continued mining to increase bankrupt assets. To tackle these issues, a researcher conducted normative legal research, focusing on legislative aspects. This falls under normative juridical research, analyzing regulations regarding revoking licenses for bankrupt mining businesses. The findings shed light on the regulatory framework for license revocation, contrasting with provisions for business continuity in bankruptcy laws. The study underscores the necessity of aligning legal regulations with their implementation, especially concerning the revocation of mining business licenses. By analyzing how mining legislation interacts with bankruptcy laws, the research seeks to offer insights into enforcing legal measures in the mining sector. In essence, the findings illuminate the complexities of revoking mining licenses in bankruptcy scenarios. Through a thorough examination of pertinent legal frameworks, the study enhances comprehension of the legal landscape governing the mining industry and identifies avenues for regulatory enhancement.

Judicial Review of the Application of Corporate Legal Veil in Malaysia and Indonesia: A Legal Comparison

This study aims to find a comparison of the Legal Corporate Veil between Malaysia and Indonesia. This research is a normative legal research as a literature review. It is found that in corporate law both in Malaysia and Indonesia there is a principle of limited liability between shareholders and company directors known as Separate Legal Entity. This principle essentially asserts that a person's responsibility in a company is limited to their responsibility within the company and does not extend to personal liability. In Malaysia, this regulation is governed by Section 20 of the Companies Act 2016. Meanwhile, in Indonesia, this principle is scattered in the provisions of the Limited Liability Company Act (UU PT) applicable to shareholders, directors, and commissioners. However, this principle may become inapplicable in certain cases, known as Piercing The Corporate Veil. In Malaysia, this is regulated under the Companies Act 2016 as well as several judicial decisions. In Indonesia, this principle becomes inapplicable if shareholders act in bad faith by using the company for personal gain and are involved in legal actions undertaken by the Company. One form of protection from personal liability for Directors and Commissioners is implemented based on the Business Judgement Rule principle. Personal liability does not apply if Directors and Commissioners can prove that the company's loss is not due to their negligence, they have acted in good faith, have no conflict of interest, and have taken action to prevent losses. In this study, there is also corporate responsibility outside the existing Limited Liability Company Law based on business and economic developments decided by The Constitutional Court.

Judicial Review of the Application of Ultra Vires Doctrine in Malaysia and Indonesia: A Legal Comparison

The Ultra Vires Doctrine serves as a fundamental principle in corporate law, delineating the boundaries of governmental authority and ensuring adherence to legal framework. This comparative study explores the application of the Ultra Vires Doctrine in the judicial systems of Malaysia and Indonesia. Through an analysis of relevant case law, statutory provisions, and scholarly literature, the study highlights similarities and differences in the interpretation and implementation of the doctrine across these jurisdictions. While both countries recognize the importance of restraining government action within legal limits, variations emerge in the extent to which courts intervene and the factors considered in determining ultra vires acts. By shedding light on these legal frameworks, this research contributes to a deeper understanding of corporate law principles in Malaysia and Indonesia and provides insights for legal practitioners, policymakers, and scholars seeking to navigate and strengthen the rule of law.

Empowered Mini-Publics: A Shortcut or Democratically Legitimate?

Contemporary mini-publics involve randomly selected citizens deliberating and eventually tackling thorny issues. Yet, the usage of mini-publics in creating public policy has come under criticism, of which a more persuasive  strand  is  elucidated  by  eminent  philosopher  Cristina  Lafont,  who  argues  that  mini-publics  with  binding  decision-making  powers  (or  ‘empowered  mini-publics’)  are  an  undemocratic  ‘shortcut’  and  deliberative democrats thus cannot use empowered mini-publics for shaping public policies. This paper aims to serve as a nuanced defense of empowered mini-publics against Lafont’s claims. I argue against her  claims  by  explicating  how  participants  of  an  empowered  mini-public  remain  ordinary,  accountable,  and therefore connected to the broader public in a democratically legitimate manner. I further critique Lafont’s own proposals for non-empowered mini-publics and judicial review as failing to satisfy her own criteria for democratic legitimacy in a self-defeating manner and relying on a double standard. In doing so, I show how empowered mini-publics are not only democratic but can thus serve to expand democratic deliberation—a goal Lafont shares but relegates to non-empowered mini-publics.

Women's rights under the Small House Policy in Hong Kong

AbstractThis article investigates how the legislature and courts in Hong Kong have been struggling to tackle the sex discrimination created by the Small House Policy (SHP). Initially introduced in 1972, the SHP provides every male indigenous villager in the New Territories with a once‐in‐a‐lifetime housing grant, thereby excluding women from this benefit. Despite its discrimination against women, the SHP was still exempted from the New Territories Land (Exemption) Ordinance in 1994 and the Sex Discrimination Ordinance in 1995. In 2019, the judicial review of Kwok Cheuk Kin and Lui Chi Hang v The Director of Land declared that part of the SHP was unconstitutional. Still, this decision was overturned in the Court of Appeal and the Court of Final Appeal, which ruled that the SHP was constitutional in its entirety. This article examines the historical context of the SHP, discusses how the court has been interpreting and defining the SHP and, more importantly, investigates how British's indirect rule created a hostile legal environment for women and further relegated them to the groups of ‘double‐ colonised’ and ‘triple‐colonised’.

A Court’s Right to Moderate Administrative Penalty in Selected Central European Countries

The purpose of this paper is to analyse the extent of a court’s authority to moderate[1] penalties imposed by administrative bodies in several Central European countries: the Czech Republic, Slovakia, Germany, and Austria. The central goal is to investigate the legal frameworks within these nations and their relationship to Article 6 of the European Convention on Human Rights.The methodology employed involves a comparative analysis of legal provisions in the aforementioned countries concerning judicial review of administrative penalties. The study scrutinizes the differences in the legal approaches taken by these nations, highlighting the diverse methods used to address the court’s role in moderating administrative penalties. The investigation is grounded in the concept of full jurisdiction, emphasising the right of individuals to have their cases thoroughly examined by a court, which also includes assessing the legality, merit, appropriateness, and proportionality of the penalties imposed.The findings reveal significant variations among the surveyed countries regarding the approach to judicial review of administrative penalties. These differences underscore the complex interplay between the executive and judiciary branches within legal systems, raising crucial concerns about principles such as legal certainty, proportionality, and the right to an effective remedy. The paper illuminates the varying degrees of court intervention in moderating administrative penalties across different legal contexts and makes a substantial academic contribution by shedding light on a relatively understudied aspect of administrative law within Central Europe. It provides valuable insights into how different legal systems address the delicate balance between executive power and judicial oversight, particularly in matters of administrative penalties.The study’s originality lies in its comparative approach, offering a nuanced understanding of the court’s role in moderating penalties and its implications for broader legal principles and human rights protection. Furthermore, the paper serves as a foundational resource for scholars and practitioners interested in exploring the origins and nuances of judicial moderation in administrative law, potentially inspiring further research and providing a schematic tool for navigating this complex legal terrain. [1] The article uses the term ‘moderate’ as a verb in situations where a court, as defined in Article 6 paragraph 1 of the European Convention on Human Rights, is by law authorized to reduce the imposed administrative penalty at its discretion or to refrain entirely from imposing a penalty while reviewing an administrative decision. In such instances, we are not referring to court moderation wherein the court is the entity directly imposing the administrative penalty.

A Doctrinal Approach to Unconstitutional Constitutional Amendments: Judicial Review of Constitutional Amendments in Sweden

The delegation theory of unconstitutional constitutional amendments, a limited theory of unamendability – Applying a doctrinal approach to justify unconstitutional constitutional amendments – Introducing a typology of unconstitutionality – The practical deficiencies and internal inconsistencies of the delegation theory – The limited role of the doctrine of unconstitutional constitutional amendments in the Swedish context – The redundancy of constituent power as a legal concept

Lacking Legislative Experience: The Impact of Changing Justice Backgrounds on Judicial Review

Abstract Though once commonplace, presidents no longer nominate individuals with legislative experience to the U.S. Supreme Court. What difference does this shift make? Drawing on theories that connect judicial background characteristics to decision-making, I test whether legislative background impacts federal judicial review. Using nonparametric matching and almost 150 years of judicial review decisions, I find that, while such experience decreases the likelihood of striking down a law, the effect is small. By contrast, partisanship has a much stronger impact, with justices more likely to strike down laws when the enacting Congressional majority is a different party from their appointing president.

Telaah kritis upaya peninjauan kembali dalam perkara perceraian di peradilan agama perspektif mashlahat al-mursalah

This paper aims to analyze the impact and legal consequences of extraordinary legal efforts for judicial review in the religious courts of divorce cases from the perspective of mashlahat al-mursalah. The method used is normative legal research using multiple approaches including legislation, cases, and a comparative approach with data analysis techniques using descriptive analysis methods. The conclusion of this study shows that legal remedies for judicial review of divorce cases that have permanent legal force (inkracht van gewijsde) create new problems (mafsadat) in society, so for the sake of legal certainty, it is better if legal remedies taken against divorce cases are sufficient to the level of appeal. or just appeal. The Compilation of Islamic Law (KHI) has a strategic position to regulate the provisions of the procedural law, considering that the position of KHI so far has not only played a role in regulating material law, it also regulates formal law against Muslim divorces in Indonesia.

IMPLEMENTATION AUTHORITY OF THE CONSTITUTIONAL COURT IN THE INDONESIAN CONSTITUTIONAL LAW SYSTEM

This study delves into the historical evolution and significance of Indonesia's Constitutional Court, focusing on its speculated super authority and independent interpretation of the Constitution. Rooted in the global context of judicial review, the research traces the court's pivotal role back to discussions during the Draft Constitution at BPUPKI and its prominence in the 1945 reform era. With the primary goal of providing a comprehensive understanding of the Constitutional Court's journey, the study sheds light on its distinctive authority and pivotal role within Indonesia's legal and constitutional framework. The research explores the court's exclusive jurisdiction, making its decisions final and binding and limiting legal recourse for dissatisfied parties. By examining the court's historical development and legal foundations, the study elucidates the Constitutional Court's role as a guardian of the constitution. The research reveals that the court's significance stems from its establishment as a constitutional guardian during the 1945 reform era, gaining prominence with the Third Amendment to the 1945 Constitution. The court's exclusive jurisdiction solidifies its position as a final arbiter in constitutional matters, shaping the legal landscape and restricting avenues for legal redress. In conclusion, the Constitutional Court has evolved into a central player in constitutional interpretation, wielding exclusive jurisdiction and serving as a final arbiter, emphasizing its unique authority and indispensable role in shaping Indonesia's legal and constitutional framework.

Resolving the Judiciary Tensions between the Constitutional Court and the Supreme Court of Indonesia

This paper addresses a critical issue undermining the legal coherence and judicial stability in Indonesia: the discord between the Constitutional Court and the Supreme Court in the realm of judicial review. This paper uncovers the root cause as a weak chain of validity in law formation, aggravated by divergent legal frameworks governing each court through utilizing doctrinal research methods. Drawing on Bullygin's deontic logic theory, the paper reveals a lack of explicit cross-sectoral policy synchronization. To immediately alleviate these tensions, this paper proposes the establishment of a Memorandum of Understanding (MOU) between the two courts, aiming to solidify the chain of legal norms and restore systemic stability. For a long-term resolution, a comprehensive revision of the judiciary law is advocated. This research serves as an urgent call for coordinated reforms to bolster the integrity and efficiency of Indonesia's judicial system.

Конституционное право и политический реализм: негативная теория свободы слова

Classic positive theories of freedom of speech explain enhanced constitutional defense of speech in terms of fundamental values served by expression (pursuit of truth, democratic governance or personal autonomy). Negative approach, which is the subject of this article, focuses not on the high social value of speech, but on the unique risks of its suppression. The dangers of repressive censorship mainly stem from personal interests of office-holders (legislators as well as law-enforcement officers) or from intolerance. Psychological reasons and the architecture of censorial decision-making turn speech into an especially fragile object of regulation. The idea underlying the constitutional status of freedom of speech is the distrust of government decision-making in speech regulation. Judicial review should pay close attention to the design of abridging laws and justifications provided for them. These laws should be worded clearly and should not allow for selective viewpoint censorship. The simplicity of negative approach and its political realism make it the most plausible theory for interpreting constitutional article on freedom of speech (expression).

Legal Counterrevolution: Property and Judicial Power in the Weimar Republic

This article offers a new account of the rise of judicial power in modern Germany. Strong judicial control of the government is often associated with the constitutional ethos that emerged in postwar West Germany as a reaction to Nazi rule. This article locates the origins of German judicialization in the political struggles of the Weimar era. It shows how the assumption of a power to judicial review by Germany's highest court, the Reichsgericht, was the product of the successful cooperation of the judiciary with conservative political parties on the issue of property rights in the young republic. These were at the centre of two controversies examined in the article: the expropriation of princes of former ruling houses and the consequences of the hyperinflation of 1923. In both cases the Reichsgericht used an understanding of property as an inalienable right to radically reinterpret Germany's first democratic constitution, which had in fact granted the legislature extensive power to modify property relations. This suited the judiciary's own objective of assuming stronger controls over legislative action and bolstered the political position of conservative forces in Weimar politics. What emerged was a supra-positive constitutionalism that sought to supersede the written constitution. These political realities were an essential context for theoretical debates on the extent and limits of judicial power between theorists such as Carl Schmitt, Hans Kelsen, Hermann Heller, Franz Neumann, and Ernst Fraenkel. An examination of the complex interaction of parliamentary, judicial, and popular politics concerning the issue of property reveals that German judicial empowerment amounted to an attempt to rewrite the Weimar Constitution and limit the scope of Germany's democratic revolution.

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.

Iraq's Counterterrorism Laws Under Scrutiny Unjustified Asset Freezes

In response to the terrorist threat posed by ISIS, Iraq implemented legal frameworks aimed at disrupting terrorist financing, including the establishment of a committee to freeze terrorist assets as per international and national laws. This study assesses the effectiveness of these measures through qualitative analysis of legal documents and judicial reviews by the Federal Supreme Court, which found many asset freezes to be unjustified. The findings indicate a need for procedural refinement to ensure fair and effective enforcement, highlighting the challenges of balancing legal integrity with counterterrorism efforts in Iraq. Highlights: Effectiveness: Examines the effectiveness of Iraq's asset freezing against terrorism, identifying practical issues. Judicial Oversight: Highlights the Federal Supreme Court's role in overturning unjustified asset freezes. Legal Refinement: Emphasizes the need to refine procedures to ensure fairness and compliance with international standards. Keywords: Terrorism Financing, Legal Frameworks, Asset Freezing, Judicial Review, Counterterrorism

Sanctions by International Organizations and Judicial Review: The Case of Mali V. The Conference of Heads of States and Government of the WAEMU

Sanctions by International Organizations and Judicial Review: The Case of Mali V. The Conference of Heads of States and Government of the WAEMU

Judicial Review and Legislation-Critical Function of the Concept“Rechtsgut”

Judicial Review and Legislation-Critical Function of the Concept“Rechtsgut”