Principles Of Judicial Review Research Articles

Legal Procedure for Investigation under the Criminal Code of Uzbekistan

This article examines the legal framework governing criminal investigations and proceedings in the Republic of Uzbekistan. Using doctrinal legal analysis, it outlines the code provisions related to inquiry, preliminary investigation, evidence gathering, rights of suspects and accused, procurator oversight, and court procedures. The objective is to elucidate the systematic approach underlying criminal justice administration in Uzbekistan, underscoring adherence to due process. The aspects include constraints on interrogation duration, attestation requirements for investigative actions, prosecutorial supervision safeguards, and judicial review principles. The study finds a robust legal structure emphasizing procedural fairness, transparency and accountability. It highlight the center on reducing bureaucratic delays in approvals, enhancing protections for juveniles and suspects, and limiting grounds for suspending inquiries. Streamlining procedures within human rights frameworks will strengthen public trust in the criminal justice system. Reforms must balance efficiency aims with upholding rule of law ideals.

TO THE RULE OF ENVIRONMENTAL LAW

In the 1988 Charter, environmental protection expresses constituent commands that are not optional and compel all governmentstructures, as well as society, to assume postures in accordance with the dictates of environmental protection, belonging to the core of constitutional identity. The competition of political, social and economic interests, also safeguarded by the constitutional text, with the protection of natural resources aimed at a dignified existence and the development of present and future generations, contextualizes deficiencies and omissions in the provision of environmental policies that require a reaction from the constituted powers so that the unconstitutional fault is not perpetuated. Jurisdiction represents one of the ways to implement the Environmental Constitution, formally and substantially legitimized by the principles of judicial review, as illustrated by recent Brazilian courts’ approaches to the silence or default by the Brazilian legislator or Executive Power. The change in traditional paradigms, however, affects legal relationships and is not immune to criticism, which requires reflection and analysis by the legal community. The study uses the deductive method, proposing to examine the problem in the light of the neoconstitutional guidelines of environmental protection, and carries out exploratory, bibliographical and documental research to appreciate recent jurisdictional constructions based on the effectiveness of environmental protection in Brazil.

Automation Bias and the Principles of Judicial Review

Automation Bias and the Principles of Judicial Review

THE “DEFERENCE” OF JUDICIAL AUTHORITY TO THE STATE*

The adoption of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”), provided an opportune moment for the courts, especially the Constitutional Court to ensure an appropriate balance in the development of the principles and values of the doctrine of separation of powers vis-à-vis those of judicial review. The Constitution is framed in a manner that entrenches a system of checks and balances (this is deduced from the manner in which the various chapters of the Constitution are structured, dealing with the roles of the legislature, executive and the judiciary). This system gives the general public a legislative and executive authority that is accountable to them subject to judicial review by an independent judiciary. The system of checks and balances affirms the limited power of the legislative and executive authorities which is confined within the constraints of constitutional values and principles. The importance of checks and balances is similarly endorsed by Edwards as a system that has ushered in a new process of the regulation of state authority in the new dawn of democracy. This system envisages a move away from a culture of authority of the apartheid rule to one of justification of the new constitutional dispensation. He substantiates his argument by pointing out that the new process of regulating state authority has enabled the courts to educate other branches of government through principled and robust articulations of the foundational and constitutional values of the Constitution in a democratic society. Against this background, the purpose of this note is to provide a brief overview of the Merafong Demarcation Forum v President of the Republic of South Africa (2008 (10) BCLR 968, hereinafter “Merafong”) judgment. The particular emphasis on this judgment is its potential to defer the judicialauthority (which the author refer to as a “political doctrine”) to the state. The objective is to analyse this doctrine and evaluate it against the development of substantive principles of judicial review. This purpose is motivated by Chaskalson CJ’s argument in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000 (3) BCLR 241). Chaskalson CJ in this case held that the Constitutional Court cannot allow itself to be diverted from its main function as the final andindependent arbiter in the contest between the state and its citizens. In Merafong, the court created an impression of having misconstrued this purpose and the objectives it has to fulfil. This note is limited to the “political approach” which the court emphasisedwithout much thought, and attempt to address the question of public involvement in legislative processes raised in this case. It alsoacknowledges that the court has affirmed its independence as the guardian of the Constitution in the regulation of state authority and advancement of the principles of judicial review, but its lack of consistency in its adopted approach is a worrying factor and a causefor concern for the regulation of state authority.

Legislation is ‘required’: The Jurists Foundation v Federal Government on the tenure extension of Pakistan’s army chief

ABSTRACT In The Jurists Foundation v Federal Government, the Supreme Court of Pakistan delivered a significant judgment about the country's Chief of Army Staff (COAS). The Court held that an executive attempt to extend the tenure of the COAS was ‘meaningless and of no consequence’ because Parliament had not legislated on the COAS’ tenure or terms of service. According to the Court, legislation was required on such terms based on ‘structural requirements’ of a repealed constitution and a universal premise that senior officers of the armed forces must be regulated by law. This note argues that the Court's approach is difficult to reconcile with key constitutional principles and that, on a proper understanding of the Court's role, the extension should have been subject to ordinary principles of judicial review.

Assessable Moots in Administrative Law: The Role of Student Feedback in Creating Cohesion

Teaching any law subject is inevitably a struggle to reconcile theory with practice, but administrative law offers its own particular challenges in this regard. Despite its potentially rich subject matter and its ability to intersect with other areas of law, a lack of perceptible cohesion and a ‘disconnect’ with the ‘real world’ continues to vex students and teachers of administrative law alike. Understanding how merits review, judicial review and other accountability mechanisms ‘fit together’, and how they interact with the various judicial and quasi-judicial institutions as well as primary and delegated legislation and government policy, can be a herculean task. Students often find connecting the theory and principles of administrative law with ‘real life’ legal and social situations confounding, which is exacerbated by the fact that administrative law does not deal with one cohesive subject matter or legislative scheme but crosses a variety of subject matters, the only unifying factor being government regulation. Further, principles of judicial review and the framework for merits and judicial review can prove conceptually challenging and students can find the material dry and uninteresting. Whilst this affliction is by no means unique to administrative law, when combined with issues of cohesion and disconnect, administrative law presents distinct pedagogical challenges for its teachers. The challenges that administrative law poses for its teachers and learners have not been overlooked in legal education scholarship. Common to this research is recognition of the need to ‘contextualise’ administrative law, or place it in the ‘real world’. Methods suggested include the use of topical issues that can help place administrative law in a historical, political and socio-economic context, express incorporation of indigenous content, investigation of the work of citizen advocate services and the utilisation of clients through clinical legal education. Might mooting, a rite of passage for all law students, help students contextualise administrative law through an understanding of how a matter proceeds through the levels of review? Could mooting help create the elusive connection between theory and practice? This paper reports upon on a three-year pilot of an assessable moot that was introduced into the subject Administrative Law at the University of Wollongong in 2016. Structured student feedback provides an insight into the pedagogical and administrative challenges and successes of assessable moots in promoting a skills-based, student-centred learning experience that encourages the development of advocacy skills and substantive knowledge that may be transferred to professional practice.

A Reform Too Few or a Reform Too Many: Judicial Review, Appeals or a Prosecutorial System under the UK Competition Act 1998?

This article discusses the CMA’s proposals to lower the standard of review of certain antitrust decisions in the CAT from a merits appeal to judicial review principles or some other limited basis, while retaining the CAT’s ‘full jurisdiction’ over fines, and to amend the CAT’s rules of procedure to restrict the admissibility of new evidence on appeal and the use of oral testimony. The argument developed in this article is that such proposals are: (a) in conflict with the constitutional principle of the rule of law; (b) incompatible with the HRA98; (c) a step back even from the often criticised standard of review applied by the Union Courts in respect of European Commission’s decisions; (d) inappropriate as a matter of policy. If the current regime needs improving to reduce the cost and length of the proceedings, then three options should be considered: (a) moving from a merits appeal to a merits review (Option 1); (b) strengthening the independence of the decision-making panel within the CMA (Option 2), while lowering the standard of review to judicial review principles; (c) establishing a prosecutorial model (Option 3). Option 3 is the most radical but should be given serious consideration as it is likely to be the best suited to achieving the policy objective of reducing the cost and length of competition proceedings while at the same time retaining rigorous scrutiny of the facts and economic evidence, which is key to ensuring not only the fairness, and therefore the legitimacy, of the system, but also its effectiveness.

A Stream That Rises above Its Source: Judicial Review from a Public Choice Perspective

A typical discussion of judicial review pits the view of Alexander Hamilton in Federalist no. 78 (protection from the “cabals of a representative body”) against the much more circumscribed view of Justice Owen Roberts (“lay the article of the Constitution which is invoked beside the statute which is challenged and decide whether the latter squares with the former”). This tension between two views informs much of the current debate over judicial review. But the “tension” is illusory; the real problem can be analyzed as a two-dimensional spatial problem, with participants having preferences over both the substantive issue being litigated and the principle of judicial review in the abstract. This article presents a set of results based on such a spatial analysis and considers an answer to the apparent paradox that judicial review may prevail against political majorities for long periods. Furthermore, the results from the model indicate that any purely issue-oriented “median voter” approach to court voting is misspecified and will lead to incorrect predictions.

The Signal and the Noise in Administrative Law

There has been an unfortunate trend in recent Supreme Court of Canada administrative law cases. While academics, practitioners and lower-court judges try to establish coherent frameworks to understand the general principles of judicial review, the Court has been resolving cases one by one without, with respect, any serious attempt to explain how they fit into its existing body of jurisprudence. The institutional context in which the Court operates, explained in Part I, no doubt influences the Court’s resolution of individual cases in this way.Whatever the background institutional context, confusion is the inevitable result, as I explain in Part II. How should lawyers read these cases: as attempts to resolve one-off issues of substantive law (workers’ compensation law, immigration law, discrimination law and so on) or as continual refinements to an already complex body of administrative law doctrine? I argue in this paper that it is now necessary to distinguish between signal and noise, between those cases that do modify administrative law doctrine and those cases that simply deal with a particular substantive area of law. In Part III, I set out criteria which will help Canadian administrative lawyers to distinguish signal from noise. This confusion seems to me, however, to be unnecessary. As I suggest in Part IV, the Court could take up judicial and academic proposals for a unified reasonableness standard that would allow it to resolve individual cases without creating uncertainty about whether it has also modified administrative law doctrine. Adopting this approach would obviate the need to distinguish signal from noise, because they would both fade into the comforting hum of reasonableness review.

Administrative Law: Characteristics, Legitimacy, Unity

Over the last half century, courts around the common law world have transformed the principles of judicial review of administrative action. Administrative law’s scope and depth have increased dramatically. Increasingly intrusive grounds of review – including for factual error and, in some jurisdictions, breach of substantive legitimate expectations – are available against a wide variety of public and private actors performing governmental functions. Assessing the legitimacy of this judicial creativity has been an important concern of administrative lawyers. However, an assessment of legitimacy cannot be performed without an understanding of the nature of administrative law. I will argue in this paper, building on previous work, that administrative law is marked by three characteristics. It is open, contestable and dynamic. These characteristics give the body of administrative law doctrine developed by judges a unique nature which must be understood prior to assessing its legitimacy. Its openness results from the breadth of legislative grants of power to administrative decision-makers and the open-textured nature of organizing concepts such as reasonableness and fairness. Determining the limits of these powers and concepts requires interpretation, a process which in the common law tradition is infused with value judgments. Its contestability results from the clash of competing values, such as the rule of law, good administration, democracy and separation of powers. By giving effect to these values in the context of particular factual situations, judges decide individual cases and develop administrative law doctrine. Its dynamism results from the contestable nature of these values. Differing conceptions and constellations of the values drive doctrinal change, because the values will be differently conceived and applied in different time periods.Against this backdrop, common to the whole body of judicial review doctrine, challenges to the legitimacy of administrative law can be properly assessed. The development of new fetters on administrative decision-makers has occurred in the absence of express legislative authorization permitting judges to impose restrictions on discretion. Equally, however, legislatures have generally not elected to erect barriers to judicial creativity. Given the openness, contestability and dynamism of administrative law, the question is not whether judicial creativity is permissible, but how best it can be channelled. To the extent that the values to be found in decided cases are consistent with the basic commitments of modern liberal democracy, there can be no objection to judicial application of the rule of law, good administration, democracy and separation of powers, especially when judges follow a pluralist approach and strive to harmonize the values, balancing private rights against public interest while respecting indicators of legislative intent and ensuring that distinct bodies play distinct institutional roles.

Proportionality: A General Ground of Judicial Review?

The application of proportionality test in Hong Kong is confined to rights-based cases. Whether proportionality should be a general principle of judicial review is not a question that can be answered simply by enumerating all the benefits that it may bring to the society. This is a fundamental question of institutional design, and if the answer to it is yes, then a radical change is brought about, therefore serious justification has to be provided. Such justification undoubtedly includes the benefits of the new system, but the benefits should in the first place be weighed against the potential adverse impact that might be caused. It is also a relevant consideration that whether the desirable benefits can be obtained through the court’s incremental development of the law relating to unreasonableness instead of directly consigning it to the history. This article first examines the differences between unreasonableness and proportionality test. It then focuses on the normative basis and the practical benefits of acknowledging proportionality test as a general ground of review, followed by an analysis of arguments against such change. This article concludes by arguing that the benefits-weighing exercise does not point to the expansion of the proportionality test.

Proportionality and Judicial Review: A UK Historical Perspective

Academic legal study is perforce temporally grounded. We most naturally consider the here and now. We may take a fleeting backward glimpse, most commonly to confirm our desired impression of the status quo, and add substance to our prognostications, hesitant or not as they may be, about the future. Legal history is commonly left to legal historians in this age of increased specialization. Their expertise is invaluable, but the historical terrain is vast, the numbers of specialist legal historians are limited and the subject matter coverage uneven. There are perforce large gaps, as exemplified by the historical landscape of administrative law. Relatively little is known about legal development in this area, and the regulatory environment from which it grew, as attested to by the nostrum that the UK had no regime of administrative law until the mid-twentieth century, which is as erroneous as it is oft-repeated. We are of course not formally bound by anything that historical legal inquiry reveals. The academic has tools that bear analogy to the judicial. We can distinguish, praying in aid changed social circumstance, altered normative values and shifting policy preferences. Yet this academic ‘power’, like all other forms thereof, comes with responsibility. The argument must withstand scrutiny in the academic market place, and must also be grounded in some knowledge of what preceded the here and now. Insofar as this knowledge is exiguous it thereby diminishes the value of the academic judgment.This chapter is designed to cast historical light on the role played by the concept of proportionality in UK law. This very sentence may provoke skepticism, given the dominant view that it was an import from continental Europe, the integration of which into UK law has been driven by membership of the ECHR and EU. There is no doubt that the classic three or four part proportionality inquiry has continental foundations, particularly Germanic, although it is noteworthy that the German eighteenth century formulation of the principle was embryonic, with the fully-fledged test developing later. Integration of proportionality into UK law has been furthered by ECHR and EU jurisprudence. There is, however, also no doubt that the UK had a concept akin to that of proportionality, from the late sixteenth century onwards. The precise appellation varied, with terms such as proportionability, proportionable, and disproportionate found in the legislation and case law. It was not a formal three-part test of the modern kind, but the older UK concept shared a common theme with its more modern offspring, which is the proscription of excessive regulatory burdens and the need to ensure that the burden was objectively justified. The story begins with four general misconceptions about UK Administrative law, which sets the backdrop for the ensuing discussion. This is followed by four historical manifestations of proportionability. It will be seen that the concept was very commonly used as a criterion in regulatory legislation from the mid-sixteenth century onwards, with the expectation that the courts would interpret and apply it to the particular regulatory regime, which is exactly what occurred. It was also used in the absence of express statutory mention, as a principle of legal interpretation, such that the courts would interpret regulatory legislation whenever possible so as not to impose excessive burdens on individuals. Proportionability was in addition deployed as a free-standing principle of judicial review, and also on some occasions as a condition for the legality of regulatory intervention. The magic number four frames the discourse in the final section of the chapter, where the focus shifts to the normative. There is discussion of the relationship between proportionality and proportionability, followed by reflections on the connection between the judicial and legislative use of proportionability. The final parts of this section consider the relevance of this material for modern doctrine, the determination of which is predicated on understanding that proportionability was judicially applied with sensitivity to regulatory purpose and appreciation of the limits to judicial oversight of the administration.

Verwaltung und Verwaltungsgerichtsbarkeit

The German Basic Law constitutes a state characterized by a division and separation as well as a mutual interaction of state powers. Consequently it is appropriate to examine the relationship between the administration and judicial review by courts from a functional perspective. Since the executive and the judicial branch of the state are both obliged to observe “statutory law and justice” (art. 20 (3) of the Grundgesetz) the authority of statutory law is of paramount importance for both. In asserting the independent significance of the administrative courts in relation to the administration, the most appropriate method is to set out clearly the interaction of the application of, first, the law, second, the administrative procedure and, third, the principles of judicial review. In all of this it is important to eschew any notion that the application of a statute can only result in one correct administrative decision. Similarly, one must avoid the idea that the same decision can be retrospectively reproduced if the application of the statute implies balancing decisions rather than the standard procedure of simply applying a law to the facts. This also results in an alteration of the method of assessment of the efficacy of judicial review. Divergence from the appropriate mode of applying the law and reviewing this application require to be justified by a statute and are constrained by the way in which the constitution allocates functions and powers. The functions and powers of the administration and the legislator are complementary. The very fact that the administration is empowered to create laws carries with it a concomitant responsibility to comply with proper procedure. The significance of this should not be underestimated because of the impact that procedural arrangements may have on the outcome. Accordingly, with respect to the relationship of administration and the administrative courts, that means that judicial review has to focus on procedural aspects of the administrative decision, where the procedure of coming to a decision is either explicitly or tacitly shaped by the legislator in a specific manner or where the procedure is atypical. The specific shape of the administrative procedure itself has a bearing on specific aspects of the judicial review. Further elements influencing the relevant methods of assessment of making and reviewing a decision are the statutory requirements for the content of the decision as well as the composition of the decision making body.

OHIM Board of Appeal's broad discretion is still subject to general legal principles of judicial review

OHIM Board of Appeal's broad discretion is still subject to general legal principles of judicial review

Using International Law in Hong Kong Courts: An Examination of Non-Refoulement Litigation

Hong Kong provides an interesting case study on the increasingly dynamic interaction between international law and domestic public law regimes. In a trilogy of cases, the Hong Kong courts have examined the domestic application of the international law of non-refoulement. These decisions addressed the potential influence of international law on constitutional rights, statutory interpretation, principles of judicial review, as well as the scope of the common law doctrine of incorporation. Having regard to common law dualist principles and Hong Kong constitutional law, this paper critically assesses the judicial use of international law in fashioning a domestic law duty of non-refoulement.

Mechanisms of Health Care Accountability, Marketisation and the Elusive State

In the United Kingdom during the past decade, individuals and groups have increasingly tested the extent to which NHS and private health providers can be held to account through principles of judicial review, or the Human Rights Act (HRA) for failure to provide access to publicly funded health care. Moreover a range of non judicial mechanisms have been developed, for monitoring standards and promoting transparency, participation and equality in the provision of NHS services. This article recognises that an important symbiosis has developed between administrative law courts and non-judicial mechanisms to enhance equality of opportunity and transparency in the distribution of health care resources. However, it also argues, that the unimpeded advance of corporate providers into NHS clinical services reflects a critical gap in the potential to hold government to account for failure to provide access to publicly funded health services, in accordance with commitments in Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR).

Rule of Law and Modern Administrative Law

Introduction: Rule of law is classical principle of administrative law. As a matter of fact this principle was one of the principles that acted as impediment development of Administrative Law principles. The irony further is that the rule of law is now an important part of modern Administrative Law. Whereas the rule of law is still the one of the very important principles regulating in common law countries and common law derived countries modern laws has denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century.Dicey Rule of Law: The concept of rule of law backs to the time of Aristotle. Aristotle ruled out the concept of rule under discretion by all means and tried to convey his followers that given the choice it is always rule of law that scores over rule of discretion. In Modern times the rule of law was propounded by the Albert Dicey, a British jurist and Philosopher. He gave following three postulates of rule of law: 1. Everyone is equal before the law. 2. Sanctions have to be backed by law. 3. Courts are the ultimate body and supremacy of court is ambivalent in civilized society.He was firm proponent of the concept and very influential thinker of his times. Though the first two principles are still in almost every legal system of world, the third principle was protested many of jurists of that time. The Dicey in particular opposed the principle of French system of Droit Administratif. England at that time was in fact propounding some quasi legislative and quasi judicial processes which were taken cognizance of English thinkers of that time; still the whole common law system of country was blindfolded with the Dicey's philosophy of “rule of law.”Dicey's Rule of Law and Modern Administrative Law: Dicey's view and proposition of rule of law has succeeded in part and wasn’t sustainable on other. Most of the modern legal system implements the principles of judicial review and similar principles of proportionality and legitimate expectations. Dicey's views on written and unwritten constitutions are subject to much debate and discussion. What can be said is that some written constitutions (e.g. the U.S. Constitution) have been quite successful at providing a framework within which individual rights are protected while others (e.g. some of the Soviet blocks constitutions) have been near total failures.The modern administrative law is fine mixture of Droit Administratif, the French law system and Dicey rule of law. The sophisticated combination of the two principles has given rise to powerful and vast body of executive. In fact the development of modern Administrative law is consequence of development of administration and its side effects. Objective of Paper: In this paper I am going to critically examine the pros and cons of modern administrative law in terms of balance of efficiency and bureaucracy. This paper shall also discuss the constitutional provisions all over the world and compare the implementation part of it in governance.

Constitutional Legitimacy Reconsidered: Beyond the Myth of Consensus

Constitutionalism as a justificatory principle of judicial review is now facing philosophical challenges. I argue that these challenges should be taken seriously, explaining what are the difficult ...

Judicial Review in Hungarian Competition Law -Tetra Laval Á La Hongroise

This paper assesses the degree of judicial scrutiny performed by administrative courts in Hungary when reviewing decisions by the Hungarian Competition Authority (Gazdasagi Versenyhivatal, ‘GVH’) in the light of the landmark ruling handed down by the European Court of Justice in Commission vs. Tetra Laval. The paper is divided into four parts. The first part provides an outline of the Hungarian Competition Act. The second part offers a brief overview of the general principles of judicial review of the Hungarian administrative authorities’ decisions. The third part examines whether the Tetra Laval ruling has influenced the judicial scrutiny applied by Hungarian courts. The fourth part concludes that although at first sight the Hungarian courts seem to draw little or no inspiration at all from the Community Courts’ case-law, a deeper analysis suggests that - irrespective of the developments in European jurisprudence - the Hungarian courts have in essence developed a finely tuned and restrained judicial review of the GVH decisions.The conclusions of this analysis point further than the Hungarian case and provides thoughts for the general discussion on the standard of judicial review of administrative authorities’ decisions.

The Judiciary in South Africa: Independence or Illusion?

In this chapter I explore judicial independence and legal transformation in South Africa. My central thesis is that judicial independence is one of the key ingredients to ensuring that the transformative possibilities embodied in the Constitution become a reality for the majority of South Africans. Despite widespread approval of the principle of judicial review amongst legal scholars, many have warned that an unelected body sitting in judgment of the powers and functions of elected representatives may erode the basic tenets of democracy. This is particularly so in the case of economic or social policy where courts in their judgments may be at odds with the executive, the legislature and popular sentiment on these matters. Two issues that come to mind are the death penalty and procedural rights for the criminally accused, where evidence suggests that the Court's judgments are not viewed favorably by significant sections of the population. I argue that because of the lingering effects of authoritarianism, racism, sexism, and other forms of prejudice - cultural by-products of colonialism and apartheid - an independent judiciary may rise above these sentiments and ensure that South Africa remains committed to the promises of rights embodied in the Constitution. But my thesis also considers judicial independence in light of the racial and gender transformation of the judiciary. I argue that although thus far the courts, and particularly the Constitutional Court, has demonstrated an impressive independence, the political and racial loyalties of some sectors of the public to the governing party may pose a threat to judicial independence.