Courting Constitutionalism

2021 ◽  
Author(s):  
Moeen Cheema ◽  
David Dyzenhaus ◽  
Thomas Poole
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Administrative Law ◽  
Political Institution ◽  
Constitutional Politics ◽  
Social Transformations ◽  
Administrative Action ◽  
The Supreme Court ◽  
The Status ◽  
Historical Developments

Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly political institution. While the strong form of judicial review adopted by the Supreme Court has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary's prominent role in adjudicating issues of governance and statecraft was long in the making. This book presents a deeply contextualised account of law in Pakistan and situates the judicial review jurisprudence of the superior courts in the context of historical developments in constitutional politics, evolution of state structures and broader social transformations. This book highlights that the bedrock of judicial review has remained in administrative law; it is through the consistent development of the 'Writ jurisdiction' and the judicial review of administrative action that Pakistan's superior courts have progressively carved an expansive institutional role and aggrandised themselves to the status of the regulator of the state.

scholarly journals Two Myths of Administrative Law

2019 ◽  
Vol 9 (1) ◽  
Author(s):  
Mark P Mancini
Keyword(s):  
Supreme Court ◽  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Administrative Action ◽  
The Supreme Court ◽  
The One ◽  
Do So

In an upcoming set of cases, the Supreme Court of Canada will review its approach to the standard of review of administrative action. In this paper, the author suggests that the Court must go back to the foundation of judicial review in redesigning the standard of review, namely, the task of courts to police the legal boundaries of the administrative body. To do so, courts must authentically interpret the legislative grant of authority to the administrative decision-maker, particularly to determine the appropriate intensity of review. To that end, the author suggests that the Court should discard two myths that have pervaded modern administrative law: (1) that administrative decisionmakers should be granted deference based on purported expertise in matters of statutory interpretation; and (2) that jurisdictional questions exist separately from questions of law. The myths may impose a different standard of review than the one discernible with the ordinary tools of statutory interpretation. The author argues that these court-created devices should not exist at the expense of the constitutionally prescribed duty of the courts to exercise their policing function and engage in genuine statutory interpretation to determine the appropriate standard of judicial review in a given case.

scholarly journals The Scope and Meaning of Reasonableness Review

2015 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Unified Approach ◽  
Administrative Action ◽  
The Supreme Court

This article draws attention to the post-Dunsmuir framework regarding the standard of review of administrative action and the Supreme Court of Canada’s reluctance to engage in grand theorizing about the general principles of judicial review. The article explores the uncertainty surrounding the application of the standard of reasonableness and what factors can or should be taken into consideration during its application. The article identifies four key problems — the scope of the post-Dunsmuir framework, the scope of its correctness category, the difficult relationship between the reasons given for a decision and the substantive reasonableness of the decision in question, and the emergence of difficult distinctions bedevilling the application of the reasonableness standard. Through identifying weaknesses in the current administration of reasonableness review, it is hoped that the courts, sooner rather than later, will adopt a unified approach for using the reasonableness standard of review.

scholarly journals TRIBUNAL JUSTICE AND PROPORTIONATE DISPUTE RESOLUTION

2012 ◽  
Vol 71 (2) ◽  
pp. 297-324 ◽  
Author(s):  
Mark Elliott ◽  
Robert Thomas
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Judicial Review ◽  
Administrative Law ◽  
Legal Doctrine ◽  
Legal Policy ◽  
High Court ◽  
The Supreme Court ◽  
Institutional Landscape ◽  
The Relationship

AbstractThe tribunals system in England and Wales has been transformed by the entry into force of the Tribunals, Courts and Enforcement Act 2007; among other things, tribunals are now located more firmly and explicitly than ever before within the judicial branch. Questions concerning the relationship between tribunals and regular courts fall to be confronted afresh within this new institutional landscape. Those questions form the focus of this article, which is particularly concerned with the issue recently considered by the Supreme Court in Cart whether, and if so to what extent, decisions taken within the tribunals system (by the Upper Tribunal) should be susceptible to judicial review by the High Court. In Cart, emphasis was placed upon the concept of “proportionate dispute resolution” as a means by which to delimit regular courts' oversight of tribunals' decisions, raising fundamental questions both of legal doctrine (relating to the relevance of the orthodox doctrinal tools of administrative law) and legal policy (concerning the degree of error on the part of a tribunal that a higher court should tolerate in the interests of the efficient, or proportionate, use of judicial resources).

scholarly journals Resolving ALJ Removal Protections Problem Following Lucia

2020 ◽  
pp. 693
Author(s):  
Spencer Davenport
Keyword(s):  
United States ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Administrative Law ◽  
Central Issue ◽  
Court Decision ◽  
Peremptory Challenge ◽  
The Supreme Court ◽  
The Status

When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs need those layers of protection to ensure fair adjudicative hearings. Lucia now threatens ALJ protections. This Note argues that implementing a peremptory challenge system which would allow each party in an adjudicative hearing to remove the ALJ from hearing its case would create an avenue in which the Court could justify the removal issue. Such a proposal would fix executive oversight concerns about the President being unable to properly implement his policy. Additionally, peremptory challenges would allow litigants in front of an agency be able to remove ALJs they feel are predisposed to the agency. By addressing both constitutional issues, the Court may be more likely to find that the two layers of tenure protection in place are permissible for those in adjudicatory positions.

The diminishing status of international law in the decisions of the Israeli Supreme Court concerning the Occupied Territories

2020 ◽  
Author(s):  
Tamar Hostovsky Brandes
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Administrative Law ◽  
The Past ◽  
The Supreme Court ◽  
The Status ◽  
Occupied Territories ◽  
The Government ◽  
Israeli Supreme Court ◽  
Governing Law

Abstract This article examines the attitude of the Supreme Court of Israel towards international law in the past decade, focusing on cases concerning the Occupied Territories. It compares the decisions of the past decade to those of the preceding decade, which were characterized as developing a “jurisprudence inspired by international law.” The article argues that the status of international law in decisions that regard the Occupied Territories has, overall, declined. While the international law of occupation still operates, officially, as the governing law in the Occupied Territories, the emphasis on compliance with the norms of international law in the Court’s decisions has decreased. Instead of relying on international law, the Court has increased its reliance on Israeli administrative law, and, in recent years, on Israeli constitutional law. As a result, the distinction between the Occupied Territories and Israel is blurred. The article argues that this shift is consistent with a deliberate eradication of the distinction between Israel and the Occupied Territories by the legislator and the government. While the article does not argue that the Court intentionally supports this eradication, it does argue that it facilitates it.

Human rights in times of terror – a judicial point of view

Legal Studies ◽  
2008 ◽  
Vol 28 (4) ◽  
pp. 493-505 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Judicial Review ◽  
Point Of View ◽  
Democratic State ◽  
The Supreme Court ◽  
The Status ◽  
Protection Of Human Rights ◽  
Israeli Supreme Court

This paper, delivered as the Second Scarman lecture, argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and the democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The paper explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.

scholarly journals Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness

2017 ◽  
Vol 62 (2) ◽  
pp. 527-564 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Analytical Framework ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Context Sensitive ◽  
Administrative Action ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship

Although the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick has now been cited more than 10,000 times by Canadian courts and administrative tribunals, many of its key features remain obscure. In this article, the author analyzes recent cases decided under the Dunsmuir framework with a view to determining where Canadian courts might usefully go next. The author’s argument is that the two important principles said to underlie the Dunsmuir framework—the rule of law and democracy—can provide guidance to courts in simplifying and clarifying judicial review of administrative action. In Part I, the author explains how the relationship between Dunsmuir’s categorical approach and the contextual approach that it replaced is uncertain and causes significant confusion, and explores the potential utility of the two underlying principles in simplifying the law. The application of the reasonableness standard of review is the focus of Part II, in which the author criticizes the general approach to reasonableness review in Canada, but suggests that the rule of law and democracy may assist in clarifying the law, by setting the boundaries of the “range” of reasonable outcomes and structuring the analytical framework for identifying unreasonable administrative decisions. Finally, the author draws the strands of Parts I and II together by arguing for the adoption of a unified, context-sensitive reasonableness standard, underpinned by the rule of law and democracy, with the aim of providing clarity and simplicity to Canadian administrative law in a manner faithful to the Supreme Court of Canada’s decision in Dunsmuir.

The Irish Supreme Court

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Northern Ireland ◽  
Supreme Court ◽  
Common Law ◽  
Administrative Law ◽  
European Convention ◽  
European Union Law ◽  
Supreme Courts ◽  
The Supreme Court ◽  
The Status ◽  
Court Of Appeal

This book examines the jurisprudence of the Supreme Court of Ireland since its creation in 1924. It sets out the origins of the Court, explains how it operated during the life of the Irish Free State (1922-1937), and considers how it has developed various fields of law under Ireland’s 1937 Constitution, especially after the ‘re-creation’ of the Court in 1961. As well as constitutional law, the book looks at the Court’s views on the status and legal system of Northern Ireland, administrative law, criminal justice and personal and family law. There are also chapters on the Supreme Court’s interaction with European Union law and with the European Convention on Human Rights. The argument throughout is that, while the Court has been well served by many of its judges, who on occasion have manifested a healthy degree of judicial activism, there are still several legal fields in which the Court has not developed its jurisprudence as clearly or as imaginatively as it might have done. It has often displayed undue conservatism and deference. For many years its performance was hampered by its extreme workload, generated by its inability to control the number of appeals brought to it. However, the creation of a new Court of Appeal in 2014 has freed up the Supreme Court to act in a manner more analogous to that adopted by supreme courts in other common law countries. The Court’s future looks bright.

8 Administrative Law

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Administrative Law ◽  
Natural Justice ◽  
Legislative Action ◽  
The Supreme Court ◽  
History Of ◽  
The Way

This chapter explains the history of ‘State Side orders’ and the development of applications for judicial review of administrative (as opposed to legislative) action in Ireland. It sets out the ramifications of the ultra vires doctrine, highlighting the East Donegal case. The importance of principles of natural justice is stressed, considering cases such as Healy. Then the way the term ‘reasonableness’ has been unpacked in Ireland is subjected to close examination, with reference to cases such as Keegan and O’Keeffe. The Meadows case and the doctrine of proportionality are analysed, as is the extent to which the Supreme Court adheres to a deferential approach to administrative bodies. Throughout this chapter the subtle differences between the Irish and English approaches to administrative law are singled out for attention and critique

Administrative Law: Revolution or Evolution?

1990 ◽  
Vol 24 (3-4) ◽  
pp. 356-367 ◽  
Author(s):  
Itzhak Zamir
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Administrative Law ◽  
The Rule Of Law ◽  
The Past ◽  
The Supreme Court ◽  
Traditional Sense ◽  
The Guardian ◽  
As If

Professor David Kretzmer has reviewed the development of administrative law in Israel and reached the conclusion that a revolution has occurred. The revolution manifests itself in the substantial widening of the scope of judicial review over administrative acts. For example, the Supreme Court is now willing to review the legality of parliamentary proceedings. This revolution, in his opinion, reflects a change in the conception of the Court's function in this realm. In the past the Court saw itself as limited to the function of deciding controversies between two opposing parties. Today, it is as if another function has been added, and the Court perceives itself as the guardian of the rule of law. Therefore, it is likely to become actively engaged in protecting the rule of law and to invalidate a governmental decision even absent a controversy in the traditional sense. The Court acts in this manner without explaining the basis or the reason for the role that it has assumed. Thus, the question may well arise whether this revolution is legitimate. On the basis of Professor Kretzmer's comments one may ask if indeed the Court, in the struggle over the rule of law, has taken on a function not its own, and in doing so itself infringed upon the rule of law.

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