Role Of Judicial Review Research Articles

Mainstreaming Justice in the Establishment of Laws and Regulations Process: Comparing Case in Indonesia, Malaysia, and Australia

This paper compares the cases of Indonesia, Malaysia, and Australia to examine how these countries incorporate principles of justice in the establishment of laws and regulations. It explores the significance of mainstreaming justice in lawmaking, emphasizing equitable representation, fair access to justice, and human rights considerations. The analysis highlights the legal frameworks and institutional structures in each country. In Indonesia, the role of the Constitutional Court and stakeholder involvement in the legislative process are examined. Malaysia's constitutional framework and efforts to address ethnic and religious diversity, as well as the role of judicial review, are discussed. Australia's common law system emphasizes parliamentary scrutiny, public consultations, and protection of individual rights through the High Court and parliamentary committees. This study provides insights into the diverse approaches and challenges faced by these countries in mainstreaming justice in their lawmaking processes. It contributes to understanding how justice can be effectively integrated into laws and regulations, offering valuable insights for policymakers and legal practitioners seeking to promote justice in legislative contexts.

The Role of Judicial Review on the Acts of Sovereignty in Egypt

This article aims to identify the beginning of the emergence of the concept of acts of sovereignty in France and how this affected the judicial theory created by the French Council of State, and its reflection on Egyptian laws and decisions of the Supreme Constitutional Court as well as the Supreme Administrative Court in Egypt. This article also aims to extract the criteria decided by the judiciary to understand the concept of sovereignty and how to distinguish it from other acts of administration. To achieve these goals, the author used the analytical approach to analyze judicial rulings that dealt with the actions of sovereignty, and the comparative perspective was also relied upon to determine the dimensions of the theory of actions of sovereignty in France and its impact on the idea of acts of sovereignty in Egypt.

Case C-616/17 Blaise and Others: The precautionary principle and its role in judicial review – Glyphosate and the regulatory framework for pesticides

The approval renewal of glyphosate as an active substance for pesticides in the EU has also kept the Court of Justice occupied. Within this line of case law, the Blaise case is the most recent one. In this preliminary reference procedure the Court was asked to review the validity of the Plant Protection Products Regulation 1107/2009, examined against the precautionary principle as benchmark. The case is relevant not only for the questions raised about the Regulation, but also as it sheds a light on the – albeit limited – use of the precautionary principle in the judicial review of EU legislative measure.

Judicial Review in Kenya: The Ambivalent Legacy of English Law

This Chapter considers the evolutions in the practice of judicial review in Kenya, and the continued relevance of English law, in the broader context of the role of judicial review in facilitating the attainment of democratic governance. It argues that English law bequeathed to Kenya an ambivalent legacy that continues to shape the exercise of the judicial review power. In theory, law has promised to provide a bulwark against the abuse of governmental power. In practice, however, it has largely served to facilitate authoritarianism. The Chapter begins by locating judicial review in the context of governance in colonial and post-colonial Kenya. It then examines the nature and role of judicial review in the Kenya colony, Independent Kenya, and more recently after the promulgation of the Constitution of Kenya 2010.

Proving Public Law Error in Automated Decision-Making Systems

Due to recent advancements in government technology practices, public lawyers are now compelled to grapple with the diverse implications of the rise of the digital administrative state. This paper considers the question of how the growth of opaque automated administrative decision-making (ADM) systems will impact on the use of evidence in judicial review proceedings. In doing so, it examines a pressing issue of law and practice at the intersection of two under-developed and important sub-fields of public law: the role of evidence in judicial review and the role of judicial review vis-a-vis automated public sector decision-making. The development of understanding in this seemingly niche area is essential to ensuring that wider public law norms maintain traction in an era of automated government systems. The discussion is in two parts. The first part of the paper examines the current understanding of the role of evidence in judicial review and finds it to be in an unsatisfactory condition. In the second part of the paper, we present the reasons for opacity in ADM systems, a framework for understanding different types of evidential complexities, and an analysis of the likely impacts on judicial review evidence. We come to two broad conclusions. First, proving public law errors in ADM systems presents a myriad of challenges which will require not only innovation by claimants but potentially necessitate wide reconsideration of legal principle and procedure. Second, on evidence more generally, examining judicial review evidence in the context of ADM exposes the need for a much wider conversation about evidence in judicial review. The conventional account of evidence in judicial review found in literature is no longer credible and it is now necessary — much like that widely recognised by those concerned with criminal law and other areas of significant litigation activity — to develop a general field concerned with the law, practice, and principles of evidence in judicial review.

When Does the “No Substantial Difference Test” Make a Difference in Judicial Review Applications? Does the Outcome Differ, Depending on Whether the Case is Based on EU or UK Law?

The Court of Appeal has described the court's role in judicial review as being comprised of two functions: “assessing the legality of actions by administrators and, if it finds unlawfulness on the ...

The role of judicial review in developing evidentiary standards: The example of market analysis in Russian competition law enforcement

Despite the fact that judicial review is an important part of competition law enforcement under the administrative system, in which courts decide on claims to annul infringement decisions made by competition authorities, its role in the development of evidentiary standards of economic analysis is understudied. This paper attempts to fill this gap by analyzing the impact of judicial review on the application of market analysis in competition investigations by the Russian competition authority during 2008–2015. Although the guidelines for the assessment of competition are mandatory for many types of anticompetitive conducts and they require application of the Hypothetical Monopolist Test to delineate antitrust market, competition authority does not always do that. We test hypotheses on the impact of legal requirements, experience of application, and the outcomes of the judicial review on the probability to present either an informal market analysis or market delineation using the Hypothetical Monopolist Test in a particular decision. We find that positive outcomes of the judicial review of infringement decisions significantly increase the probability of undertaking a particular analysis in future investigations. The pressure of judicial review under the presence of mandatory standards of evidence is an important determinant of the development of evidentiary standards in competition law.

Judicial Review in Troubled Times: Stabilizing Democracy in a Second Best World

Debates over the role of judicial review in a constitutional democracy gravitate to one of two poles. Either the debates are framed in terms of the power of courts countering the outputs of a well-ordered legislative process, or they are framed in terms of the dominant rights commands of minorities ever vulnerable to the tyranny of the majority. This Article parts company with the customary debate in two ways. First, the inquiry focuses on the structures of democratic governance rather than the relation between a governing majority and the rights of disfavored individuals or minorities. Second, and contrary to the conditions assumed by critics of judicial review such as Jeremy Waldron and Richard Bellamy, the aim here is to look directly to the “contaminated” domain of our lived experience in the moment rather than an idealized vision of well-ordered parliamentary sovereignty. Especially in a time of populist challenges to the institutionalization of democratic politics, the role of constitutional courts as potential brakes on the politics of immediacy takes on greater and greater significance. Relying on examples from jurisdictions around the world, this Article sets out three types of interventions ranging in terms of how problematic they are for democratic governance. First is the use of constitutional review to prevent entrenched officeholders from undermining their electoral accountability, as seen in places are far removed as Taiwan and North Carolina. The second is the role of court interventions to bolster what is termed the “soft power” of democracy in which institutional norms compel a politics of negotiation and compromise. Finally, there is the temptation for courts to substitute judicial authority for failing state competence of democracies in general, and of the legislative branches in particular. In each case, judicial review is examined to determine to what extent the judiciary can serve as an institutional buffer in protecting democracy against systemic failure, sometimes on matters that may pertain to fundamental liberties, but more often on questions of the exercise of governmental authority. The question here is whether in times of challenge to democratic functioning the judiciary may play a stabilizing role in warding off temporary political expedients that threaten governmental integrity. The term “stabilization” invokes the role of a central banker charged with maintaining fiscal integrity in the face of inevitable partisan demands for unsustainable short-term returns. In turn, the inquiry is whether judicial interventions in defense of the structural integrity of democratic rule can be thought in similar terms of conservatorship by a semi-independent entity and, in turn, how this institutional role of the judiciary might be utilized in times of systemic stress.

The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light

The Taiwan Constitutional Court (TCC) recently issued a landmark decision in Interpretation No. 748 (the Same-Sex Marriage Case), declaring the definition of marriage as a gender-differentiated union of a man and a woman under the Civil Code unconstitutional and setting the stage for Taiwan to become the first in Asia to legalize same-sex marriage. This decision has been compared to Obergefell v. Hodges. However, reading Obergefell in the broad context of the gay rights movement and the role of judicial review in Taiwanese constitutional politics, we challenge this analogy. Due to the discrepancy between the social movement and the law in the fight for constitutional rights for gays and lesbians in Taiwan, the Same-Sex Marriage Case is Taiwan’s Brown v. Board of Education moment in her constitutional law and politics. To make sense of the law and politics of the Same Sex Marriage Case, we evaluate its political context and the text and style in its reasoning. We observe a discrepancy between law and politics in the pursuit of the constitutional rights of gays and lesbians in Taiwan. The rise of same-sex marriage to the top of the antidiscrimination agenda resulted from the continuous effort of gay rights activists, while the TCC watched this movement from the sidelines until the Same-Sex Marriage Case. This case thus mirrors Brown in two respects. First, the role of the TCC has been publicly questioned after its Brown-like contentious decision on the issue of same-sex marriage. Second, the text and style of the Same-Sex Marriage Case is evocative of the exceptional brevity, managed unanimity, and scientific rationality in Brown. Echoing the Brown Court, the TCC attempts to manage judicial legitimacy, anticipating and answering the political reaction to its ruling in light of its intervention in gay rights issues by tackling the fundamental question of same-sex marriage head-on.

Judicialization of Politics and Legal Culture: The Passage of the Philippine Parity Amendment of 1946

This article examines the Philippine legal culture by highlighting the politics of the Philippine constitutional amendment in 1946-47 and the centrality of the role of judicial review in this process. As this paper shows, the role of the judiciary as ‘the final arbiter of law’ is hinged on this institution’s independence; however, judicial independence was problematic at this juncture in Philippine history. The Philippine Supreme Court, through its power of judicial review, failed to stand for constitutionalism and demonstrated a lack of judicial independence. Employing textual and historical analyses, this paper analyzes the Philippine Supreme Court’s decisions on cases relevant to the constitutional amendment, their precedents, and the history and politics of the amendment. It argues that the decisions on the constitutional amendment cases demonstrate a legal culture of judges and politicians that developed under colonial conditions where norms of legality highlight judicialization of politics and politicization of the judiciary.

Finding a model of judicial review for administration: implications from the Chevron case for separation of powers in South Korea

Although there are some disparities in regards to the structure and role of judicial review of administrative actions, the Korean government shares many characteristics with that of the United States and thus may learn from an American experience. From the perspective of public administration, this study investigates the judicial review of administrative actions in Korea by looking into its performance under the separation of powers and double-court system. Because the 1984 Chevron decision, a landmark of US judicial deference, highlighted the relation between administration and legislature, its principle has some applicability to Korean judicial review in resolving recently developed president-legislature conflict. The decision promulgates a two-step criterion for administrative discretion, which asks whether the legislative intent is clear and then whether the delegated discretion is ‘reasonable’. It may encourage administrators to change in three ways: to break up the doctrine of stare decisis, to engage in ethical discourse over constitutional values, and to play the role of guardians of the Constitution.

Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation

The viability and desirability of conducting cost-benefit analysis of financial regulation is a subject of intense academic debate. Opponents claim that such analysis is feasible for environmental regulation but not for financial regulation because of the difference in the benefits that require monetization in the respective areas. This Article argues that the recent debate misses an important part of the problem. In large part, cost-benefit analysis of financial regulation cannot currently be performed successfully because of institutional shortcomings, not analytical difficulties. Compared to Executive Branch agencies, independent agencies, like the major financial regulatory agencies, lack the capacity to do cost-benefit analyses of acceptable quality. Fortunately, there are good Executive Branch models that could be exported to the financial regulatory agencies. In particular, the Financial Stability Oversight Council could implement a robust coordinating role diffusing macroeconomic expertise, learning from the experience of the Interagency Working Group set up to estimate the damage of one ton of carbon dioxide emissions. Moreover, the President could extend to independent agencies his Executive Order vesting in the Office of Information and Regulatory Affairs the responsibility to review significant federal regulations. Though no President has yet taken this step, in part because of fears of a congressional backlash, the time might now be ripe to do so. And, the financial regulatory agencies could learn from the experience of the Environmental Protection Agency in building significant economic expertise to aid the preparation of cost-benefit analyses.The Article also considers the role of judicial review. It takes issue with the influential argument that OIRA review can serve as an alternative to judicial review, showing that such an outcome would be inconsistent with settled principles of administrative law. But OIRA review can lead to more deferential judicial review, by serving as a signal that reviewing courts are likely to find reassuring.

The Rule of Law: The Role of Judicial Review in Promoting Human Rights and Social Reform

The purpose of this paper is to investigate the expanded scope of judicial review after the introduction of the Canadian Charter of Rights and Freedoms in 1982 and the subsequent power of courts to strike down legislation that violates constitutional rights. Subsequent interpretations of the Charter have transformed such rights into litigation tools and sources of empowerment capable of mobilizing forces for social change. Through an analysis of major cases and rulings, the paper will argue that the adoption of the Charter and the constraints existent upon popularly controlled institutions have established judicial systems as the primary guarantors of citizen and minority rights and the active instigators ofsocial reform in Canadian civil society. Each of the chosen cases bears monumental political and legal significance. R. v. Oakes created a proportionality test used to assess and potentially remove state legislation infringing on Charter‐protected liberties; R. v. Morgentaler decriminalized abortion and represented a definitive judicial foray into a contentious ethical and political debate; Vriend v. Alberta removed the last bastion of sanctioned discrimination against homosexuals, providing a foundation for The Same Sex Marriage Reference and finally Halpern v. Canada rendered Ontario the first jurisdiction in North America to recognize same‐sex marriage. The paper will also address the limited capacities of legislative bodies to meet demands for reform, leaving them to assume chiefly reactive roles. Finally, it will examine and evaluate criticism levied at the judicial review process, with particular attention paid toaccusations of anti‐majority and undemocratic tendencies.

Fundamental rights in European Union civil service law

Sometimes neglected by lawyers, European Union civil service law represents an area where fundamental rights issues are particularly likely to arise: the official confronts the administration which he or she works for, and which may adopt measures specifically addressed to him or her. The role of judicial review is then of the utmost importance. However, the relationship European Union personnel have with the administration is a public law one, and this is the case mainly because the European Union administration has the responsibility of ensuring the achievement of the tasks conferred on the European Union institutions by the Treaties. The Staff Regulations, which are the main source of European Union civil service law, reflect the nature of this relationship in their provisions and procedures. It is against this backdrop that one has to assess the ways in which the European Union Charter of Fundamental Rights can be of relevance in European Union civil service law.

Public Litigation and the Concept of "Deference" in Judicial Review

The Constitutional Court is the highest court in all constitutional matters and thus decides appeals from other courts in disputes involving natural and juristic persons and the state, including criminal matters, if the matter is a constitutional matter or an issue connected with a decision on a constitutional matter. The Court may hear any matter, if the Constitutional Court grants leave to appeal because the matter raises an arguable point of law of general public importance that ought to be considered by that court. The Constitution makes it clear that courts are independent and subject only to the Constitution and the law. All persons to whom and organs of state to which a court order or decision applies are bound by it. It is important that the courts employ a standard of judicial review that is compatible with constitutional principles and values. The Constitutional Court subscribes to a standard of “deference” in judicial review. This principle recognises the need to protect the institutional character of each of the three arms of government in a manner that will prevent their ability to discharge their constitutional role being undermined. The principle of deference concerns the function of the judge in mediating between the law and legislative and executive politics. Around the world, litigation or judicial review has become immensely popular as a treatment for the pains of modern governance. South Africa is no exception to this phenomenon. This activism by litigation consists of efforts to promote, impede, or direct social, political, economic, or environmental change, or stasis. Organisations and individuals often disregard or distrust the political process and approach the courts to advance their own interest and to protect their own rights. Litigants seek to enforce constitutional principles and values that affect others as directly as them and that are valued for moral or political reasons and are independent of economic interests. The relief claimed aims to restructure the public organisation or conduct by the legislature and/or executive to eliminate a threat to constitutional principles and values enshrined in the Constitution. The South African Constitution has provided the public litigant with the freedom to bring matters before the courts not possible in terms of the common law. This has led to a departure from the traditional conception of litigation and consequently the remedies that courts have to offer. Courts have the duty to intervene in constitutional violations, but they have a prerogative to decide when and to what extent to intervene when such a violation occurred within the domain of other branches of government. The decision on whether to intervene and then, to what extent, will depend on the standard of judicial review the courts employ. Davis proposes a culture of justification for judicial review that takes into account the democratic prerogative of the elected arms of government to fashion and implement public policy within the framework of the Constitution. This culture accepts that the role of judicial review is to foster a culture of democracy, and that the judiciary must commence from a standpoint that it operates within a governmental system that is based upon a doctrine of separation of powers. Although Davis’s work is meant as only as a framework for a coherent theory of judicial review, the question of justification and participation advances other constitutional values such as openness, non-discrimination, accountability and participation to judicial scrutiny. It is submitted that the culture of justification meets the tenets of judicial review as set out by both Mureinik and Dyzenhaus and finds application in an objective interpretation of constitutional provisions and values. The culture of justification ensures that the government justifies its decisions to the governed; it promotes transparent government and allows the citizens to participate in decisions affecting them.

The Reasonableness of Proportionality in the Australian Administrative Law Context

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

The Reasonableness of Proportionality in the Australian Administrative Law Context

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

Reflections on the State of Workers’ Compensation and Occupational Health & Safety in the United States and Canada

When an article similar to this one was published in Canada, it reflected primarily knowledge derived from firsthand experience in several provinces and territories, and empirical research in Ontario and British Columbia. Since that article was published in 2013, this new article reflects my research on recent publications in the United States on Workers’ Compensation. The article begins by explaining the damaging and overwhelming significance of experience rating. To enhance an understanding of current situations, the article then explains the legal history of Occupational Health & Safety and Workers’ Compensation. Then the role of physicians is discussed, particularly the difficulties they often have in distinguishing questions of law from questions of medicine. The article then deals with how decisions are made in the claims department of a Workers’ Compensation Board and by appeals tribunals. The practice of actuaries is explained, including the problems that their role creates. The limited role of judicial review is then mentioned, and finally the significance of the North American Free Trade Agreement and the World Trade Organization. The article concludes with conclusions and comments.

Looking for Wednesbury's Reasonable Interpretation

The judicial review ground of unreasonableness, in particular Wednesbury unreasonableness (Wednesbury) continues to pervade the realms of judicial review in Australia. From the outset of its application, Wednesbury has received an overwhelming amount of criticism. In particular, its scope and boundaries are often deemed as “inescapably qualitative” and stringent. Despite this, Wednesbury continues to dominate the unreasonableness ground. Australia, unlike its common law counterparts continues to uphold Wednesbury unreasonableness in its traditional “unmodified form”. It shall be argued that an unreasonableness ground performs a vital role in judicial review as it ensures that governments act in a reasonable and rational manner. This paper shall address whether the High Court’s complex decision in Minister for Immigration and Citizenship v Li (MIAC v Li) will offer guidance to the contemporary application of the ground of unreasonableness. In effect, it shall be examined whether MIAC v Li is able to assist in attaining the objective of what this paper will describe as the re-interpretation of Wednesbury. Reform to its operation may need to occur and preferable recommendations to the scope of unreasonableness shall be examined, in particular the principle of proportionality.

Access, Fairness and Affordability: Procedural Justice in NICE, Anvisa and Conitec

Everywhere, health care systems are making hard choices about medicines. These choices are sensitive, controversial and often result in litigation. For example, the recent report in the UK about the drug Tamiflu casts doubt on the efficacy of the treatment and its value for money to the public health system. In Brazil too, the uncontrollable judicialization of public health decision-making illustrates the gravity of these issues and the challenges they present. They demonstrate that health systems have to operate within finite budgets and that, because we cannot afford everything, we must ensure that treatments are effective and good value for money. We suggest that the hard choices required should not be made by judges deciding individual cases. National public authorities should perform these functions where possible, taking full account of public interests.All public authorities are subject to judicial supervision. Public health care resource allocators should work within a clear and transparent procedural framework which assures everyone the system is operating fairly and consistently. We should be clear about the role of public authorities and judicial review in decision-making, and the principles governing the incorporation of new treatments.A comparative study of Brazil - UK is helpful for two reasons. First, the rules governing judicial review in Brazil and the UK are different. In Brazil, the courts are more willing to take substantive responsibility for administrative decision-making by ordering that specific treatments are provided to individual patients. In the UK, by contrast, the principle of procedural review is normally limited to the reasonableness of the decision only, so that when a decision is wrong, it is referred back to the public authority to be reconsidered. Second, it is useful to compare the structural and procedural similarities of NICE, Anvisa and Conitec to assess the extent to which they are capable of promoting equality of access to a proper range of affordable medicines. In particular, we recommend a need for strong and transparent administrative procedures to relieve the courts of the duty to intervene in these cases.We also consider the many medicines which cannot be considered by national public authorities. Which local authorities decide about these medicines and what procedures should they follow? We recommend a framework of procedural values which reassures the courts that the system (whether national or local) is working fairly and consistently and does not require extensive interference from judges.Thus, we will consider: (A) The process for evaluating new technologies in NICE, Anvisa and Conitec, (B) The role of the courts in supervising these administrative procedures and (C) the residual role of judicial review of payment decisions in the NHS and SUS. The study concludes that the proper balance between increasing demand for health care, finite public health budgets and the promotion of public interests is best achieved through public authorities structured in ways which are open and accountable. We recommend that such bodies be subject to proper procedural judicial review and that “public” access to medicines is most likely to be served by courts which respect the public dimension of decision-making.